On the Residential Schools – University of Toronto Faculty of Law, Professor Kent Roach
IdeaLaw Conference 2014, Dalhousie Schulich Law School, Halifax, Nova Scotia
At this year’s IdeaLaw Conference, Professor Kent Roach argued that the ongoing failures of Canadian Law to re-imaginatively adapt itself to address the injustices of the residential schools and its legacies continues to be a major inhibitor to reconciliation. The residential schools legacy provide constitutional experts and lawyers, argued Roach, with a case in point in the systematic failure to protect Aboriginal language, Aboriginal rights, culture, language, family and the fair legal indemnity for the abuses and loss of culture.
The residential schools were a government sponsored and church ran system that had as its mission to remove Aboriginal children from their homes, cultural setting and spiritual elders to assimilate them into Canadian culture. Canada’s first policy on residential schools took shape in John A. MacDonald’s government and continued until 1996. As Prime Minister and Minister of Indian Affairs, John A. MacDonald, stated in the House of Commons on May 9th 1883, despite his Government’s good intentions, it was an attempt to assimilate and eliminate Aboriginal nations.
“When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write. It has been strongly impressed upon myself, as head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men”.[i]
More than 150 000 First Nations, Inuit, and Métis children were forcibly placed into that system, and because there are more than 80 000 survivors today, inter-generational legacies of the residential schools continue to affect Aboriginal peoples today despite the last closing in 1996. The residential schools were set up to assimilate Aboriginal children by forbidding them to speak their own languages, to learn their own culture and spiritual beliefs. The 1996 Canadian Royal Commission on Aboriginal Peoples also reported and documented emotional, physical and sexual abuses the children suffered at the schools.
Despite the 1996 Canadian Royal Commission on Aboriginal Peoples report, the 2006 Indian Residential Schools Settlement — considered the largest class-action settlement in Canadian history, and the Truth And Reconciliation Commission of Canada (TRC), there is a sense that we have been taking steps backwards in at least five ways.
I. The legacies of residential schools continue to be an attack on the Aboriginal family structure
An area where we continue to see the inter-generational legacies of the residential schools is in that of parenting and child rearing for Aboriginal peoples. Recently released statistical data on Aboriginal children foster cases due to neglect show there are today more cases of child apprehension than the height of the residential schools.
Child abuse incident report data in 2008, 14225 children aboriginal in foster care and 3.6% Aboriginal children under 16; 15345 non-Aboriginal children in foster care and 0.3% of non aboriginal persons.
85% of children in child foster care in Manitoba are Aboriginal
80% of children in child foster care in Saskatchewan are Aboriginal
59% of children in child foster care in Alberta are Aboriginal
52% of children in child foster care in British Colombia are Aboriginal[ii]
II. The residential schools affected educational and Aboriginal livelihood traditions
A second area we continue to see the inter-generational legacies regards the Canadian government’s neglect of its treaty obligations for adequate education for Aboriginal peoples. Many young Aboriginal people need to leave their communities to pursue high school education far away from home. Education is protected by treaty and continues to be ignored by the Federal government and statutory law. According to Professor Roach, the First Nations Education Act continues not to meet the needs of young Aboriginal people and funding guarantees.
III. The residential schools were attacks on Aboriginal languages and culture
A third area that we continue to see the inter-generational legacies regards the ongoing loss of Aboriginal languages and cultural traditions. Amongst the first complaints residential survivors made after the 1996 commission focused on the loss of language and identity. In 2010 UNESCO showed that out of the 90 Aboriginal languages 37% are critically in danger, 19% are severely in danger, 16% are in danger. In 1996 RCAP pointed to the importance of supporting Aboriginal languages. Aboriginal language rights exist as a constitutionally protected right under section 35 of the 1982 Act. It is also an international obligation under The United Nations Declaration on the Rights of Indigenous Peoples, which can be accessed here.
IV. The residential schools were attacks on the health of the children
The forth that we continue to see the inter-generational legacies concerns the ongoing problems regarding health of Aboriginal children. In Canada, Aboriginal children are subject to 31 times the rate of tuberculosis of non-Aboriginal Canadians. The resources that were devised and allocated for the inter-generational legacies of the residential schools through the Health Foundation and the Aboriginal Health journal funding have been unjustifiably cut. Current Health Canada programs provide only individual services while there are more communal needs to be met.
V. The residential schools were attacks on justice
The fifth area we continue to see the inter-generational legacies is in fundamental justice. Aboriginals today dramatically remain overrepresented in crime victims and dramatically overrepresented in prison. The abuses treated the children as prisoners. The children were given numbers and put on bread and water rations as forms of punishment. While 38 000 individuals applied for the assessment process only available for sexual abuse and other serious physical abuse, only a small number of prosecutions have occurred.
[i] House of Commons, Debates, 46 Vict. (May 9, 1883) 14: 1107-1108
[ii] Statistics provided by Professor Kent Roach. As Professor Roach noted, the United Nation’s Human Rights Commission commented on Canada’s treatment of Aboriginal peoples but this has not entered mainstream Canada. The problem is that the data is not readily accessible and more of it is needed.