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I want Canadians to understand that [the legacy of the residential schools] does not just affect the lives of the person who actually attended the school, but family members, such as spouses and children, are also very deeply affected about this sad legacy in history.
— Johanne Coutu-Autut, spouse of former Turquetil Hall resident1
Residential schools are a tragic part of Canada’s history. But they cannot simply be consigned to history. The legacy from the schools and the political and legal policies and mechanisms surrounding their history continue to this day. This is reflected in the significant educational, income, health, and social disparities between Aboriginal people and other Canadians. It is reflected in the intense racism some people harbour against Aboriginal people and in the systemic and other forms of discrimination Aboriginal people regularly experience in this country. It is reflected too in the critically endangered status of most Aboriginal languages.
Current conditions such as the disproportionate apprehension of Aboriginal children by child-welfare agencies and the disproportionate imprisonment and victimization of Aboriginal people can be explained in part as a result or legacy of the way that Aboriginal children were treated in residential schools and were denied an environment of positive parenting, worthy community leaders, and a positive sense of identity and self-worth. The schools could be brutal places, as Joseph Martin Larocque, a former student at the Beauval residential school in Saskatchewan, told the Truth and Reconciliation Commission of Canada.
[Residential school] was a very harsh environment. They, they treated us like criminals.… You, you had to, it’s like a prison. But we were small kids, and we didn’t understand. We didn’t understand harsh discipline. We, we understood love from our, our parents. But the harsh discipline was hard to take, and that happened to everybody, not only me.2
The impacts of the legacy of residential schools have not ended with those who attended the schools. They affected the Survivors’ partners, their children, their grandchildren, their extended families, and their communities. Children who were abused in the schools sometimes went on to abuse others. Many students who spoke to the Commission said they developed addictions as a means of coping. Students who were treated and punished like prisoners in the schools often graduated to real prisons. For many, the path from residential school to prison was a short one. Mervin Mirasty was a student at the Beauval residential school.
I ran away from school. I’d go out, I’d walk around town, and steal whatever I could steal.… I started stealing cars. I got caught at fifteen. I ended up in jail. From that point of fifteen years old ’til … to the year 2000, I got sentenced to twenty-five years all together, twenty-five years all together. And I don’t know what I was fighting, what I was trying to do. I didn’t care who I stole from. I drank. I started drinking when I was about seventeen, eighteen. I drank, I stole, I hardly worked. I used the system, the welfare system, and plus I stole, and I drank.3
Children exposed to strict and regimented discipline in the schools sometimes found it difficult to become loving parents. Genine Paul-Dimitracopoulos’s mother was placed in the Shubenacadie residential school in Nova Scotia at a very early age. Paul-Dimitracopoulos told the Commission that knowing this, and what the school was like, helped her understand “how we grew up because my mom never really showed us love when we were kids coming up. She, when I was hurt or cried, she was never there to console you or to hug you. If I hurt myself she would never give me a hug and tell me it would be okay. I didn’t understand why.”4 Alma Scott of Winnipeg told the Commission that as “a direct result of those residential schools because I was a dysfunctional mother.… I spent over twenty years of my life stuck in a bottle in an addiction where I didn’t want to feel any emotions so I numbed out with drugs and with alcohol…. That’s how I raised my children, that’s what my children saw, and that’s what I saw.”5
The Commission is convinced that genuine reconciliation will not be possible until the complex legacy of the schools is understood, acknowledged, and addressed. Parliament and the Supreme Court have recognized that the legacy of residential schools should be considered when sentencing Aboriginal offenders. Although these have been important measures, they have not been sufficient to address the grossly disproportionate imprisonment of Aboriginal people, which continues to grow, in part because of a lack of adequate funding and support for culturally appropriate alternatives to imprisonment.
More First Nations child-welfare agencies have been established, but the disproportionate apprehension of Aboriginal children also continues to grow. In part, this has happened because of a lack of adequate funding for culturally appropriate supports that would allow children to remain safely with their families, or to allow children to be placed in foster or adoptive environments that are culturally appropriate and capable of giving children a sense of identity, self-respect, and self-worth.
Many of the individual and collective harms have not yet been redressed, even after the negotiated out-of-court settlement of the residential school litigation in 2006, and Canada’s apology in 2008. In fact, some of the damages done by residential schools to Aboriginal families, languages, education, and health may be perpetuated and even worsened as a result of current governmental policies. New policies can easily be based on a lack of understanding of Aboriginal people, similar to that which motivated the schools. For example, current child-welfare and health policies that fail to take into account the importance of community in raising children can result in inappropriate decision making. We must learn from the failure of the schools in order to ensure that the mistakes of the past are not repeated in the future.
Despite the challenges and failings in responding to the legacy of residential schools, and a concern that the federal government may have lost a sense of urgency on these issues since the 2006 Indian Residential Schools Settlement Agreement and Canada’s apology in 2008, the Commission is nonetheless cautiously optimistic that promising pathways to constructive reforms do exist. These could include new strategies based on respect for Aboriginal self-determination and for Canada’s obligations under Treaties, and Canada’s endorsement of the new United Nations Declaration on the Rights of Indigenous Peoples.
In its February 2012 Interim Report, the Commission observed that the United Nations Declaration provides a valuable framework for working towards ongoing reconciliation between Aboriginal and non-Aboriginal Canadians. We continue to encourage all governments, and all the legal parties to the Settlement Agreement, to use it as such a framework.6
The Government of Canada initially refused to adopt the Declaration. When it finally did endorse the Declaration, it did not fully embrace its principles, saying that “it is a non-legally binding document that does not reflect customary international law nor change Canadian laws.”7 The Commission is convinced that a refusal to respect the rights and remedies in the Declaration will serve to further aggravate the legacy of residential schools, and will constitute a barrier to progress towards reconciliation.
Residential schools, as acknowledged by the prime minister’s own admission in his 2008 official apology from Canada, were an attack on Aboriginal children and families. They were based on racist attitudes that considered Aboriginal families as being frequently unfit to care for their children. By removing children from their communities and by subjecting them to strict discipline, religious indoctrination, and a regimented life more akin to life in a prison than a family, residential schools often harmed the subsequent ability of the students to be caring parents. In many ways, the schools were more a child-welfare system than an educational one. A survey in 1953 suggested that of 10,112 students then in residential schools, 4,313 were either orphans or from what were described as “broken homes.”8 From the 1940s onwards, residential schools increasingly served as orphanages and child-welfare facilities. By 1960, the federal government estimated that 50% of the children in residential schools were there for child-welfare reasons.9
The residential school experience was followed by the “Sixties Scoop”—the widescale national apprehension of Aboriginal children by child-welfare agencies. Childwelfare authorities removed thousands of Aboriginal children from their families and communities and placed them in non-Aboriginal homes without taking steps to preserve their culture and identity. Children were placed in homes across Canada, in the United States, and even overseas. This practice actually extended well beyond the 1960s, until at least the mid- to late 1980s.10
Today, the effects of the residential school experience and the Sixties Scoop have adversely affected parenting skills and the success of many Aboriginal families. These factors, combined with prejudicial attitudes toward Aboriginal parenting skills and a tendency to see Aboriginal poverty as a symptom of neglect, rather than as a consequence of failed government policies, have resulted in grossly disproportionate rates of child apprehension among Aboriginal people. A 2011 Statistics Canada study found that 14,225 or 3.6% of all First Nations children aged fourteen and under were in foster care, compared with 15,345 or 0.3% of non-Aboriginal children.11 As Old Crow Chief Norma Kassi said at the Northern National Event in Inuvik, “The doors are closed at the residential schools but the foster homes are still existing and our children are still being taken away.”12 The Commission agrees: Canada’s child-welfare system has simply continued the assimilation that the residential school system started.
Canada’s child-welfare crisis has not gone unnoticed in the international community. In 2012, the United Nations Committee on the Rights of the Child expressed to Canada its concern about the frequent removal of children in Canada from families as a “first resort” in cases of neglect, financial hardship, or disability. In its report, the committee singled out the frequency with which Aboriginal children are placed outside their communities.13 Noting that Canada had failed to act on its own auditor general’s findings of inequitable child-welfare funding, the committee concluded that “urgent measures” were needed to address the discriminatory overrepresentation of Aboriginal children in out-of-home care.14
The First Nations Component of the Canadian Incidence Study of Reported Child Abuse and Neglect, designed by the Public Health Agency of Canada and its provincial, academic, and agency partners, confirmed that Aboriginal children in the geographic areas studied are also significantly overrepresented as subjects of child maltreatment investigations. For every 1,000 First Nations children, there were 140.6 child maltreatment-related investigations, as compared with 33.5 investigations for non-Aboriginal children.15 The rate of investigations involving First Nations children was 4.2 times the rate of non-Aboriginal investigations.16 The study also found that in the population under review, those allegations were more likely to be substantiated in the cases of First Nations children. This was true for all categories of maltreatment, but the difference was most extreme for investigations of neglect.17 Investigations of First Nations families for neglect were substantiated at a rate eight times greater than for the non-Aboriginal population.18
An analysis of the Canadian Incidence Study confirmed that poverty and social stressors are major factors in child-welfare investigations involving Aboriginal families. Aboriginal parents were more likely to experience a host of serious risk factors, including domestic violence, alcohol abuse, lack of social supports, drug or solvent abuse, and a history of living in foster care or group homes.19 The direct connection between Aboriginal poverty and high child-welfare apprehensions has been known for half a century. Yet, Aboriginal children are still taken away from their parents because their parents are poor.
Researchers suggest that clear standards are needed to guide apprehensions, and that the provision of family supports and prevention services might be a better response to concerns than removal of the child.20 There must be a commitment to reducing the number of Aboriginal children in care and developing supports to keep families together. Child-welfare workers must bring to their work an understanding of Aboriginal culture as well as an understanding of the lasting harms caused by residential schools.
Call to Action
1) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by: i. Monitoring and assessing neglect investigations. ii. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside. iii. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools. iv. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing. v. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers. Better research and data are also required in order to monitor and develop strategies to reduce the overrepresentation of Aboriginal children in care.
Call to Action
2) We call upon the federal government, in collaboration with the provinces and territories, to prepare and publish annual reports on the number of Aboriginal children (First Nations, Inuit, and Métis) who are in care, compared with non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventive and care services by child-welfare agencies, and the effectiveness of various interventions.
The child-welfare system apprehends too many Aboriginal children while, at the same time, failing to protect them. The Commission heard many stories of mistreatment in foster homes. One woman told us that her foster parents physically and sexually abused her. Her Aboriginal identity was constantly disparaged. She said, “[My foster parents were] adamant about Aboriginal culture being less than human, living as dirty bush people, eating rats. It made me not want to be one of those people. And for years, I didn’t know how to be proud of who I was because I didn’t know who I was.”21
Linda Clarke was placed in a foster home with three other children.
In that foster home there was a pedophile, and I don’t [know] what was happening to anybody else, but I became his target. The mother used to always send me to do errands with him. And so every time, he would make me do things to him and then he would give me candy. Also, in that home there was no hugging of us foster kids or anything like that. And I carried a great guilt for many, many years, because sometimes I didn’t want to resist it, I just…. But I knew it was very bad.22
Sometimes, child-welfare placements end in tragedy. Where there are province-specific statistics available, the findings suggest that in some parts of the country, Aboriginal children who come into contact with child-welfare authorities are significantly more likely to die.
Research in Alberta indicated that 78% of children who have died in foster care between 1999 and mid-2013 were Aboriginal.23 Since Aboriginal children, a minority of the overall population, represent 59% of children in care in Alberta, the rate of Aboriginal child deaths in care is even more disproportionate than the apprehension rate. Of the seventy-four recorded deaths of Aboriginal children in care, thirteen were due to accidents, twelve children committed suicide, and ten children were the victims of homicide.24 Forty-five of these Aboriginal children died while in the care of a provincial child-welfare agency, and twenty-nine died in the care of an on-reserve First Nations child and family service agency.
There are over 300 child-welfare agencies in Canada operating under provincial and territorial jurisdiction. In addition, Canada provides funding to over 100 agencies delivering child and family services to First Nations families under the framework of provincial legislation.25 In 2010–11, there were 9,241 First Nations children outside the parental home and in the care of these First Nations child and family service agencies, representing 5.5% of on-reserve children.26 A few larger Canadian cities (such as Toronto and Vancouver) also have Aboriginal child and family service agencies.27 In Manitoba, there is also an agency serving Métis families. There are, however, no Aboriginally controlled agencies in the three northern territories; child-welfare services to Aboriginal families there are provided through the same government agencies that serve all children. In two out of the three territories, Aboriginal people make up a majority of the members in their legislatures and cabinets.
Although the federal government acknowledges its responsibility for child-welfare services to First Nations families, Métis communities are not well served. The Commission believes that adequately funded, Métis-specific, child and family services must be made available to Métis children and families. The Government of Canada should not let unresolved jurisdictional disputes stand in the way of the acceptance of such responsibilities. Similarly, the Commission believes the Government of Canada should ensure the development of adequately resourced Inuit child-welfare services in the North and in urban centres such as Ottawa and Montreal that have a significant Inuit population.
Proof of the effectiveness of First Nations child and family service agencies is still preliminary, but anecdotal evidence and case studies suggest that First Nation agencies are more effective than non-Aboriginal agencies in providing service to First Nation clients.28 But, it is troubling that the ability of First Nations child and family services agencies to develop culturally appropriate services has been constrained by limited funding. Of twelve First Nations agencies surveyed in 2005, 83.4% reported that they did not receive adequate funds to ensure culturally appropriate services.29 It is clear that the way in which Canada has funded Aboriginal child welfare has hampered First Nations agencies in providing effective services. This shortfall continues to inflict pain on Aboriginal families and communities, and contributes to the continuing overrepresentation of Aboriginal children in foster care.
Jurisdictional responsibility for child welfare is intensely contested. Historically, the federal government and provincial and territorial governments have tried to shift responsibility for Aboriginal child services from one level of government to another. The federal position is that responsibility for child and family services lies solely within the jurisdiction of the provinces and territories. Canada contends that the federal government is responsible for funding only on-reserve services. In contrast, the provinces maintain that the federal government has constitutional responsibility for ‘Indians,’ and argue that Ottawa has off-loaded that responsibility to the provinces to provide services to an increasingly urban, non-reserve population.30
The result is that there are often disputes over which level of government or department is responsible for paying costs. The repercussions of these disputes can be serious, with Aboriginal children paying the highest price—in particular, children with complex developmental, mental health, and physical health issues.31
In 2007, the House of Commons unanimously supported the adoption of “Jordan’s Principle,” named in honour of a Manitoba infant born with complex medical needs who spent all of his short life in hospital, caught up in a federal–provincial jurisdictional dispute over responsibility for funding his care.32 According to Jordan’s Principle, the government department that is first contacted for a service available only off-reserve must pay for it and later pursue reimbursement for the expenses.33 But Jordan’s Principle was not passed into law; rather, it is a statement of principle by the Canadian parliament.34 Many inter-governmental cases of disputed responsibility continue.
Call to Action:
3) We call upon all levels of government to fully implement Jordan’s Principle.
Although there is now considerable Aboriginal control of child-welfare services, Aboriginal agencies still struggle for adequate funding. There is a need for more funding and research into preventive services that can support Aboriginal families. At the same time, many of the conditions that result in disproportionate Aboriginal involvement in the child-welfare system are related to more intractable legacies of residential schools, including poverty, addictions, and domestic and sexual violence. We believe that in order to redress the legacy of residential schools and to move towards more respectful and healthy relationships, the Government of Canada, in meaningful consultation with First Nations, Inuit, and Métis communities, must recognize and address the broader context of the child-welfare crisis. This includes matters of child poverty, housing, water, sanitation, food security, family violence, addictions, and educational inequities. Effective child-welfare reform will require both measureable targets and timelines for reducing the numbers and proportion of Aboriginal children in care, greater consistency in the system’s regulatory framework, and the acknowledgement of the central role of Aboriginal agencies.
Canada has rejected First Nations’ demands to operate services in accordance with traditional laws and traditional justice systems. By contrast, in the United States, tribal courts have played an important role in the child-welfare system since 1978. These courts have exclusive jurisdiction over custody proceedings involving Native American children living on a reservation. They may also play a role in Native American child-custody cases where the child lives outside a reservation.35 While not perfect, the American system has led to greater tribal authority over the placement of Indigenous children, as well as the expansion of family preservation programs. Indigenous children are still removed from their homes in disproportionately high numbers, but the rate of overrepresentation has decreased. The rate of placement with non-Indigenous caregivers has also decreased.36
Call to Action
4) We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that: i. Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies. ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making. iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
There is also a human dimension to improving outcomes for Aboriginal children. The intergenerational impact of the residential school experience has left some families without strong role models for parenting. An investment in culturally appropriate programs in Aboriginal communities has the potential to improve parenting skills and enable more children to grow up safely in their own families and communities.
Call to Action
5) We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.
The residential school system failed as an education system. It was based on racist assumptions about the intellectual and cultural inferiority of Aboriginal people—the belief that Aboriginal children were incapable of attaining anything more than a rudimentary elementary-level or vocational education. Consequently, for most of the system’s history, the majority of students never progressed beyond elementary school. The government and church officials who operated the residential schools ignored the positive emphasis that the Treaties and many Aboriginal families placed on education. Instead, they created dangerous and frightening institutions that provided little learning.
In their mission to ‘civilize’ and Christianize, the school staff relied on corporal punishment to discipline their students. That punishment often crossed the line into physical abuse. Although it is employed much less frequently now, corporal punishment is still legally permissible in schools and elsewhere under Canadian law. Section 43 of the Criminal Code 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.” The Commission believes that corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes.
Call to Action
6) We call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada.
The objectives of the schools were to strip away Aboriginal children’s identities and assimilate them into Western Christian society. Doris Young, who attended the Elkhorn residential school in Manitoba, described the experience as a systematic attack on her identity as a Cree person.
Those schools were a war on Aboriginal children, and they took away our identity. First of all, they gave us numbers, we had no names, we were numbers, and they cut our hair. They took away our clothes, and gave us clothes … we all looked alike. Our hair was all the same, cut us into bangs, and straight short, straight hair up to our ears…. They took away our moccasins, and gave us shoes. I was just a baby. I didn’t actually wear shoes, we wore moccasins. And so our identity was immediately taken away when we entered those schools.37
In addition to the emotional and psychological damage they inflicted, one of the most far-reaching and devastating legacies of residential schools has been their impact on the educational and economic success of Aboriginal people. The lack of role models and mentors, insufficient funds for the schools, inadequate teachers, and unsuitable curricula generally taught in a foreign language—and sometimes by teachers who were also not proficient in the language of instruction—have all contributed to dismal success rates for Aboriginal education. These conditions were compounded for many students by the challenges of trying to learn in environments rendered traumatic by homesickness, hunger, fear, abuse, and institutionalized helplessness. The Commission has heard many examples of students who attended residential school for eight or more years, but left with nothing more than Grade Three achievement, and sometimes without even the ability to read. According to Indian Affairs annual reports, in the 1950s, only half of each year’s enrolment got to Grade Six.38
Poor educational achievement has led to the chronic unemployment or under-employment, poverty, poor housing, substance abuse, family violence, and ill health that many former students of the schools have suffered as adults. Although educational success rates are slowly improving, Aboriginal Canadians still have dramatically lower educational and economic achievements than other Canadians.
Education is a fundamental human and Aboriginal right, guaranteed in Treaties, in international law, and in the Canadian Charter of Rights and Freedoms. In particular, the United Nations Declaration on the Rights of Indigenous Peoples contains a powerful statement on the right to education under community control. The Declaration states, “Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.”39 The Commission believes that fulfilling the promise of the Declaration will be key to overcoming the legacy of the residential schools.
It is not surprising that, faced with terrible conditions and mostly ineffective teaching, many students left school as soon as they could. A 2010 study of Aboriginal parents and children living off reserves found that the high school completion rate is lower for former residential school students (28%) than for those who did not attend (36%).40 Only 7% of the parents who attended residential school have obtained a university degree, compared with 10% for those Aboriginal parents who had never attended these institutions.41
Although secondary school graduation rates for all Aboriginal people have improved since the closure of the schools, considerable gaps remain when compared with the rates for the non-Aboriginal population. For example, according to the 2006 census, 34% of Aboriginal adults had not graduated from high school, compared with only 15% of their non-Aboriginal counterparts.42 In the 2011 census, these numbers improved slightly, with 29% of Aboriginal people not graduating from high school, compared with 12% in the non-Aboriginal population.43
It is significant that the lowest levels of educational success are in those communities with the highest percentages of descendants of residential school Survivors: First Nations people living on reserves, and Inuit. Both groups have a high school completion rate of 41% or less.44
The statistics for First Nations people living off reserves and for Métis are somewhat better. More than 60% of First Nations people living off reserves and 65% to 75% of Métis people have graduated from high school (although these results are still below the national average).45
Lower educational attainment for the children of Survivors has severely limited their employment and earning potential, just as it did for their parents. Aboriginal people have lower median after-tax income, are more likely to experience unemployment, and are more likely to collect employment insurance and social assistance benefits.46 This situation is true for all Aboriginal groups, with some variations. In 2009, the Métis unemployment rate for persons aged twenty-five to fifty-four was 9.4%, while the non-Aboriginal rate was 7.0%.47 In 2006, the Inuit unemployment rate was 19%.48 The true rates of unemployment for people living on reserves are difficult to ascertain because of limited data collection.49
Aboriginal people also have incomes well below their non-Aboriginal counterparts. The median income for Aboriginal people in 2006 was 30% lower than the median income for non-Aboriginal workers ($18,962 versus $27,097, respectively).50 The gap narrows when Aboriginal people obtain a university degree, which they do at a far lower rate.51 Not surprisingly, the child poverty rate for Aboriginal children is also very high—40%, compared with 17% for all children in Canada.52 The income gap is pervasive: non-Aboriginal Canadians earn more than Aboriginal workers no matter whether they work on reserves, off reserves, or in urban, rural, or remote locations.53
The proportion of Aboriginal adults below the poverty line, regardless of age and gender, is much higher than that of non-Aboriginal adults, with differences ranging from 7.8% for adult men aged sixty-five or older, to 22.5% for adult women aged sixty-five or older.54 The depth of poverty is also much greater, with Aboriginal people having an average income that falls further below the poverty line on average than that of non-Aboriginal adults, and their poverty is more likely to have persisted for a significant period of time.55
Call to Action
7) We call upon the federal government to develop with Aboriginal groups a joint strategy to eliminate educational and employment gaps between Aboriginal and non-Aboriginal Canadians.
Present-day Aboriginal education in Canada is made up of a mix of models. The federal government funds schools on reserves, with the actual operation of those schools often delegated to the local First Nation. Aboriginal children who do not live on reserves are educated through the provincial or territorial school systems. In addition, there are a few education systems completely run and managed by First Nations through self-government and other types of intergovernmental agreements.
There are approximately 72,000 students attending 518 First Nation schools.56 Despite those numbers, many children must still leave their homes and families behind if they wish to obtain a higher education, even at the high school level.
Since 1973, the Government of Canada has claimed that it is committed to devolving control of education to First Nations people.57 However, the interpretation of “Indian control” offered by the Government of Canada bears little resemblance to the vision of First Nations. The government’s version of the term has entailed the devolution of federal education programs to First Nations, without the benefit of adequate funding or statutory authority.58 Indeed, when devolution began, it was designed to occur without any additional expense. This meant that former Indian Affairs-operated schools, which were already substandard compared with provincial norms, were handed over to the First Nation bands to run, but without giving the bands the means to operate them effectively. As a result, the curriculum for the majority of First Nation schools is virtually identical to that found in the provincial and territorial schools.59 This approach is not significantly different from the approach during the residential school era, when Indigenous communities had no say in the content and language of their children’s schooling.
The funding formula for First Nations schools was last updated in 1996, and does not take into account the range of basic and contemporary education components needed to deliver a good-quality education in the twenty-first century, such as information and communication technologies, sports and recreation, language proficiency, and library services.60 Worse still, since 1996, funding growth for First Nations education has been capped at 2%, an amount that has been insufficient to keep pace with either inflation or the rapid increases in the Aboriginal student population.61 Meanwhile, between 1996 and 2006, funding to provincial and territorial school systems increased annually by 3.8%, almost double the increase for reserve schools.62 The underfunding of reserve schools likely violates Treaty promises about education, and makes it very difficult to overcome the educational and consequent income gaps.
In many cases, the fees that First Nations are charged when they send their children to provincial schools are higher than the amount of funding they receive from Canada per student.63
Calls to Action
8) We call upon the federal government to eliminate the discrepancy in federal education funding for First Nations children being educated on reserves and those First Nations children being educated off reserves.
9) We call upon the federal government to prepare and publish annual reports comparing funding for the education of First Nations children on and off reserves, as well as educational and income attainments of Aboriginal peoples in Canada compared with non-Aboriginal people.
Since 2011, three major reports on First Nations education have concluded that the status quo is unacceptable and that there is a need for a complete restructuring based on principles of self-government, a culturally relevant curriculum, and stable funding. All three reports agree that Aboriginal peoples themselves must lead and control the process of change.64
In October 2013, the government released the text of the proposed First Nations Education Act. The bill itself provided no guarantee of increased or stable funding of First Nations schools, leaving such matters to be resolved through regulations, with no assurance of equity in the distribution of resources to educate First Nations children in First Nations schools or in provincial schools. In February 2014, the Government of Canada and the Assembly of First Nations announced an agreement on a new basis for First Nations education reform and legislation. The agreement called for over $2 billion in new funding to reserve schools, and replaced the 2% cap on annual increases with a 4.5% annual increase and $1.25 billion from 2016–17 to 2018–19. However, after opposition from Aboriginal leaders, the proposed legislation was put on hold, pending agreement on the principles for a new Act.
Based on all that it has heard from thousands of former students and family members throughout the country, the Commission is convinced that such an Act must recognize the importance of education in strengthening the cultural identity of Aboriginal people and providing a better basis for success. Albert Marshall, a former student of the Shubenacadie residential school in Nova Scotia, made this point forcefully to the Commission.
The current education system has been designed to completely eradicate who I am and to kill that Indian Mi’kmaq spirit that’s in me. But I do know I need knowledge and I need education. But the kind of education I need has to be reflective of who I am as a Mi’kmaq. And that knowledge that I get, that I will receive, I have a responsibility with that knowledge to pass it down so others will benefit from it…. The kind of legacy that I want to leave my children in the future generations is one of which they will be able to excel, they will be able to compete without having to worry about is the education system going to further eradicate their selves.65
Call to Action
10) We call upon the federal government to draft new Aboriginal education legislation with the full participation and informed consent of Aboriginal peoples. The new legislation would include a commitment to sufficient funding and would incorporate the following principles: i. Providing sufficient funding to close identified educational achievement gaps within one generation. ii. Improving education attainment levels and success rates. iii. Developing culturally appropriate curricula. iv. Protecting the right to Aboriginal languages, including the teaching of Aboriginal languages as credit courses. v. Enabling parental and community responsibility, control, and accountability, similar to what parents enjoy in public school systems. vi. Enabling parents to fully participate in the education of their children. vii. Respecting and honouring Treaty relationships.
Provincial and territorial schools are the only option for Métis students, other Aboriginal children without recognized status, and those First Nation and Inuit children who do not live on reserves or who do live on reserves but attend provincial schools. Their educational outcomes are not significantly better than those who attend First Nation schools on reserves or in their home communities.66 Jurisdictional disputes between the federal and provincial governments over responsibility for Métis education continue to be a major obstacle to ensuring that Métis people have control over the education of their young people. The Métis remain without recognized jurisdiction and authority even though they have equal protection under Section 35 of the Constitution.67 The result is that Métis children generally are educated in public or Catholic school systems in which school boards are not specifically held accountable for the education needs of Métis children.68 The Commission believes all levels of government should consult with Métis parents, communities, and national organizations to provide Métis-specific educational programming.
Inuit students face one of the largest gaps in terms of educational attainment. A disproportionately high number of northern parents are residential school Survivors or intergenerational Survivors. Inuit are among Canada’s youngest citizens, with a median age of twenty-two. In response to the intense needs of its young population, Inuit peoples have been leading the way to dramatic change. Inuit education is on the cusp of significant transformation, with some of the most promising models for self-governing education coming out of northern communities. But these changes have not been without obstacles. Some regions have a greater capacity to develop the necessary resources than others. A shortage of bilingual educators is one of the greatest barriers to expanding bilingual education in Inuit schools. There is also a lack of teaching and reading materials in Inuit languages.69
Another major problem is the lack of supports both within and outside the education system that are necessary to ensure student success. Inuit educators have long recognized that it is important to begin working with children as early as possible, but the North lacks good-quality daycare and preschool spaces.70
To help close the income and employment gap, Aboriginal people need increased access to post-secondary education. Only 8.7% of First Nations people, 5.1% of Inuit, and 11.7% of Métis have a university degree, according to the 2011 census.71 The federal auditor general has commented: “In 2004, we noted that at existing rates, it would take 28 years for First Nations communities to reach the national average. More recent trends suggest that the time needed may be still longer.”72 The barriers to post-secondary education have had profound effects. Geraldine Bob attended residential school at Kamloops, British Columbia. She told the Commission at a Community Hearing in Fort Simpson, Northwest Territories, that poor education and negative experiences at residential school delayed her attendance at university and her entry into the workforce as a teacher. She suggested that
the residential school system owes me those lost years. You know, I lost my retirement; I have to keep working, I don’t have a good retirement fund because it was so late when I went to school. And I’ve proven that I can go to university and be successful as a teacher. So … that little tiny bit of Common Experience Payment doesn’t compensate for all that loss.73
Almost no one with some university or college education who spoke to the Commission had been able to obtain that education directly after high school. Most, like Geraldine Bob, had lost years to the time it took them to heal enough to even consider the possibility of upgrading their schooling.
If access to post-secondary education is to be improved, increasing the rates of secondary school completion is an important step. But even for those who qualify for a university program, there are significant obstacles. Federal funding for post-secondary education suffers from the same 2% funding cap that has been imposed on elementary and secondary schools since 1996. The First Nations Education Council estimates that there is a backlog of over 10,000 First Nations students waiting for post-secondary funding, with an additional $234 million required to erase that backlog and meet current demands.74 The financial barriers and other difficulties that Aboriginal people face in attending post-secondary institutions deprive the Canadian workforce of the social workers, teachers, health-care workers, tradespeople, legal professionals, and others who can help address the legacy of residential schools.
Call to Action
11) We call upon the federal government to provide adequate funding to end the backlog of First Nations students seeking a post-secondary education.
Aboriginal families continue to suffer from a general lack of early childhood education programs. The Assembly of First Nations reported that, according to 2011 data, 78% of children up to the age of five have no access to licensed daycare, let alone to intensive early childhood programs.75 Such programs are vital to support the development of young children and, by extension, address some of the deficit in parenting skills that is the legacy of residential schools.
Call to Action
12) We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate early childhood education programs for Aboriginal families.
To close the education and income gaps, there needs to be stable and adequate funding of Aboriginal education that takes into account the challenges of the legacy of residential schools as well as other challenges faced by Aboriginal people. In addition to fair and adequate funding, there is also a need to maximize Aboriginal control over Aboriginal education, and to facilitate instruction in Aboriginal cultures and languages. These educational measures will offer a realistic prospect of reconciliation on the basis of equality and respect.
In a study of the impact of residential schools, the Assembly of First Nations noted in 1994 that
language is necessary to define and maintain a world view. For this reason, some First Nation elders to this day will say that knowing or learning the native language is basic to any deep understanding of a First Nation way of life, to being a First Nation person. For them, a First Nation world is quite simply not possible without its own language. For them, the impact of residential school silencing their language is equivalent to a residential school silencing their world.76
The Royal Commission on Aboriginal Peoples similarly noted the connection between Aboriginal languages and what it called a “distinctive world view, rooted in the stories of ancestors and the environment.” The Royal Commission added that Aboriginal languages are a “tangible emblem of group identity” that can provide “the individual a sense of security and continuity with the past … maintenance of the language and group identity has both a social-emotional and a spiritual purpose.”77
Residential schools were a systematic, government-sponsored attempt to destroy Aboriginal cultures and languages and to assimilate Aboriginal peoples so that they no longer existed as distinct peoples. English and, to a far lesser degree, French were the only languages permitted to be used in most schools. Students were punished— often severely—for speaking their own languages. Michael Sillett, a former student at the North West River residential school in Newfoundland and Labrador, told the Commission, “Children at the dorm were not allowed to speak their mother tongue. I remember several times when other children were slapped or had their mouths washed out for speaking their mother tongue; whether it was Inuktitut or Innu-aimun. Residents were admonished for just being Native.”78 As late as the 1970s, students at schools in northwestern Ontario were not allowed to speak their language if they were in the presence of a staff member who could not understand that language.79 Conrad Burns, whose father attended the Prince Albert school, named this policy for what it was: “It was a cultural genocide. People were beaten for their language, people were beaten because … they followed their own ways.”80
Rights to culture and language, and the need for remedies for their loss, have long been recognized in international law.81 They are specifically acknowledged in the United Nations Declaration of the Rights of Indigenous Peoples, which has recognized the critical state of Aboriginal languages. Article 8:1 of the Declaration recognizes that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” Article 8:2 provides that “states shall provide effective mechanisms for prevention of and redress for any form of forced assimilation or integration.”
The Declaration also includes specific recognition of the right to revitalize and transmit Aboriginal languages in Article 13:1, which recognizes that “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.” Article 14 provides for educational language rights of the type that Canadians already know and experience, with respect to anglophone and francophone minorities. Article 14:1 provides similarly that “Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning,” and Article 14:3 provides: “States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.” Article 16 provides that Indigenous peoples “have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination,” and that states “shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity.”82
The attempt to assimilate students by denying them access to, and respect for, their Aboriginal language and culture often meant that the students became estranged from their families and communities. Agnes Mills, a former student at All Saints residential school in Saskatchewan, told the Commission her story.
And one of the things that residential school did for me, I really regret, is that it made me ashamed of who I was…. And I wanted to be white so bad, and the worst thing I ever did was I was ashamed of my mother, that honourable woman, because she couldn’t speak English. She never went to school, and they told us that, we used to go home to her on Saturdays, and they told us that we couldn’t talk Gwich’in to her and, and she couldn’t, like couldn’t communicate. And my sister was the one that had the nerve to tell her, “We can’t talk Loucheux to you, they told us not to.”83
Mary Courchene, formerly a student at the residential schools at Fort Alexander in Manitoba and Lebret in Saskatchewan, had a similar interaction with her family.
And I looked at my dad, I looked at my mom, I looked at my dad again. You know what? I hated them. I just absolutely hated my own parents. Not because I thought they abandoned me; I hated their brown faces. I hated them because they were Indians…. So I, I looked at my dad and I challenged him and I said, “From now on we speak only English in this house,” I said to my dad. And you know when we, when, in a traditional home where I was raised, the first thing that we all were always taught was to respect your Elders and never to, you know, to challenge them. And here I was, eleven years old, and I challenged … my dad looked at me and I, and I thought he was going to cry. In fact his eyes filled up with tears. He turned to my mom and he says, … “Then I guess we’ll never speak to this little girl again. I don’t know her.”84
Some Survivors refused to teach their own children their Aboriginal languages and cultures because of the negative stigma that had come to be associated with them during their school years. This has contributed significantly to the fragile state of Aboriginal languages in Canada today.
Many of the almost ninety surviving Aboriginal languages in Canada are under serious threat of extinction. In the 2011 census, 14.5% of the Aboriginal population reported that their first language learned was an Aboriginal language.85 In the previous 2006 census, 18% of those who identified as Aboriginal had reported an Aboriginal language as their first language learned, and a decade earlier, in the 1996 census, the figure was 26%. This indicates nearly a 50% drop in the fifteen years since the last residential schools closed. There are, however, variations among Aboriginal peoples: 63.7% of Inuit speak their Indigenous language, compared with 22.4% of First Nations people and only 2.5% of Métis people.86
Some languages are close to extinction because they have only a few remaining speakers of the great-grandparent generation. The United Nations Educational, Scientific and Cultural Organization (unesco) lists 36% of Canada’s Aboriginal languages as being critically endangered, in the sense that they are used only by great-grandparent generations; 18% are severely endangered, in the sense that they are used by the great-grandparent and grandparent generations; and 16% are definitely endangered, in the sense that they are used by the parental and the two previous generations. The remaining languages are all vulnerable.87 If the preservation of Aboriginal languages does not become a priority both for governments and for Aboriginal communities, then what the residential schools failed to accomplish will come about through a process of systematic neglect.
In interpreting Aboriginal and Treaty rights under Section 35(1) of the Constitution Act, 1982, the Supreme Court of Canada has stressed the relation of those rights to the preservation of distinct Aboriginal cultures.88 The Commission concurs. The preservation of Aboriginal languages is essential and must be recognized as a right.
Call to Action
13) We call upon the federal government to acknowledge that Aboriginal rights include Aboriginal language rights.
At a time when government funding is most needed to protect Aboriginal languages and culture, Canada has not upheld commitments it previously made to fund such programs. In 2002, the federal government promised $160 million for the creation of a centre for Aboriginal languages and culture and a national language strategy.89 But, in 2006, the government retreated from that commitment, pledging instead to spend $5 million per year in “permanent funding” for the Aboriginal Languages Initiative (ALI), which had been started in 1998.90 The ALI is a program of government-administered heritage subsidies. It is not based on the notion of respectful nation-to-nation relations between Canada and Aboriginal peoples. Neither does it provide Aboriginal people with the opportunity to make decisions for themselves about how to allocate scarce resources and how to administer programs. Many who appeared before the Truth and Reconciliation Commission of Canada were skeptical about the government’s commitment to preserve Aboriginal languages. As Michael Sillett told us, “I cannot see the federal government putting out the money that’s necessary for full restitution, you know…. I can’t bring back my language; I lost that. I lost my culture, you know.”91
Other than ALI, the only significant programs for language preservation are the Canada-Territorial Language Accords ($4.1 million annual budget), which support territorial government-directed Aboriginal language services, supports, and community projects in Nunavut and the Northwest Territories. In Yukon, language revitalization and preservation projects are supported through transfer agreements with ten of the eleven self-governing Yukon First Nations.92
The combined total annual federal budget for these Aboriginal languages programs is $9.1 million. By way of comparison, the Official Languages Program for English and French is projected to receive funding as follows:
The resources committed to Aboriginal language programs are far fewer than what is committed to French in areas where French speakers are in the minority. For example, the federal government provides support to the small minority of francophones in Nunavut in the amount of approximately $4,000 per individual annually. In contrast, funding to support Inuit-language initiatives is estimated at $44 per Inuk per year.94
The Commission believes that a multi-pronged approach to Aboriginal language preservation—if implemented, honourably resourced, and sustained— might prevent further increase in the litigation of Aboriginal language rights, and the increased international criticism of Canada’s policy towards Aboriginal-language rights. This approach will require full, good-faith consultation, which recognizes that although Aboriginal communities have the necessary knowledge, particularly among their Elders, to preserve their own languages, additional support is needed. The outcome of the consultation should be legislation and policies that affirm the importance of Canada’s Indigenous languages, and allocate adequate funding to ensure their preservation.
Calls to Action
14) We call upon the federal government to enact an Aboriginal Languages Act that incorporates the following principles: i. Aboriginal languages are a fundamental and valued element of Canadian culture and society, and there is an urgency to preserve them. ii. Aboriginal language rights are reinforced by the Treaties. iii. The federal government has a responsibility to provide sufficient funds for Aboriginal-language revitalization and preservation. iv. The preservation, revitalization, and strengthening of Aboriginal languages and cultures are best managed by Aboriginal people and communities. v. Funding for Aboriginal language initiatives must reflect the diversity of Aboriginal languages.
15) We call upon the federal government to appoint, in consultation with Aboriginal groups, an Aboriginal Languages Commissioner. The commissioner should help promote Aboriginal languages and report on the adequacy of federal funding of Aboriginal-languages initiatives.
In addition to promoting the use of Aboriginal languages, an Aboriginal Languages Commissioner would also educate non-Aboriginal Canadians about the richness and value of Aboriginal languages and how strengthening those languages can enhance Canada’s international reputation.
Aboriginal people recognize how important it is for their children to speak and understand an Aboriginal language. Sabrina Williams, an intergenerational Survivor from British Columbia, expressed that need.
I didn’t realize until taking this language class how much we have lost—all the things that are attached to language: it’s family connections, it’s oral history, it’s traditions, it’s ways of being, it’s ways of knowing, it’s medicine, it’s song, it’s dance, it’s memory. It’s everything, including the land.… And unless we inspire our kids to love our culture, to love our language … our languages are continually going to be eroded over time. So, that is daunting. Yeah. So, to me that’s part of what reconciliation looks like.95
Language instruction may require innovative approaches, including the use of Elders and others as teachers and the use of immersion programs. Education institutions must be flexible and responsive in their attempts to encourage the teaching of Aboriginal languages. They should be prepared to draw on the available resources within Aboriginal communities to facilitate the teaching and transmission of Aboriginal languages. More formal training opportunities are also required.
Call to Action
16) We call upon post-secondary institutions to create university and college degree and diploma programs in Aboriginal languages.
As a result of the residential school experience, many Aboriginal people lost their language and lost touch with their culture. Many also suffered a loss of a different sort. It was common for residential school officials to give students new names. At the Aklavik Anglican school in the Northwest Territories, a young Inuit girl named Masak became “Alice”—she would not hear her old name until she returned home.96 At the Qu’Appelle school in Saskatchewan, Ochankugahe (Path Maker) became Daniel Kennedy, named for the biblical Daniel, and Adélard Standing Buffalo was named for Adélard Langevin, the Archbishop of St. Boniface.97 Survivors and their families who have sought to reclaim the names that were taken from them in residential schools have found the process to be both expensive and time consuming. We believe that measures should be put in place to reduce the burden placed on those who seek to reclaim this significant portion of their heritage.
Call to Action
17) We call upon all levels of government to enable residential school Survivors and their families to reclaim names changed by the residential school system by waiving administrative costs for a period of five years for the name-change process and the revision of official identity documents, such as birth certificates, passports, driver’s licenses, health cards, status cards, and social insurance numbers.
Residential schools endangered the health and well-being of the children who attended them. Many students succumbed to infectious disease, particularly tuberculosis. Sexual and physical abuse, as well as separation from families and communities, caused lasting trauma for many others. The effects of this trauma were often passed on to the children of the residential school Survivors and sometimes to their grandchildren. Residential schools also posed a threat to the mental health of students through the pervasive assumptions and assertions they made about the inferiority of Aboriginal peoples, cultures, and languages. This disregard for Aboriginal health and well-being was consistent with the long-established patterns of colonialism: the introduction of new diseases, the disruption of traditional food sources, and the concentration of people on unproductive land and the housing of them in cramped, unsanitary dwellings.
The schools undermined Aboriginal health by failing to feed and clothe the children properly and housing them in poorly constructed and dangerous buildings. The schools did not properly screen out sick and infectious children, and often lacked adequate treatment facilities. As Ruby Firth, a former student at Stringer Hall in the Northwest Territories, told the Commission, those conditions had a lasting effect.
I’ve got chronic bronchitis today. Every winter I get pneumonia like two or three times and I’m on two puffers ’cause when I was in Stringer Hall residential school they used to put us in these little skinny red coats that weren’t even warm enough for winter. And we used to have to walk across the street to go to school.… Both my lungs are 50% scarred from having pneumonia seven times in [residential school]. That’s always going to be there, it’s never going to go away.98
There were also lasting psychological and emotional impacts. Sonia Wuttunee-Byrd described the damage that residential school caused her.
I lost my braids, my beautiful hair was cut, and I felt like my identity was so confused, I didn’t know who I was. What is even worse is that they started to sexually take advantage of me and abuse me, not one, not two, but many, many people for a very long time, until I was sixteen. I started to really deteriorate. I became very sick and anorexic, and really started to go downhill. At one point I only weighed sixty-six pounds, and that was it, I had no desire to live. The doctor said, “You have a month to live, go home.” He said to my family, “Take her home, she is going to die.”… I would say to Mom and Dad, and they never understood why I was crying. The school always said, “Sonia is a fantastic student, she is doing so well,” but inside it was torment. I held everything in and didn’t tell anybody for twenty years.99
Katherine Copenace, a former student at the St. Mary’s residential school in Ontario, told the Commission about her struggles.
The residential school students suffered physical, sexual, spiritual, and most of all emotional abuse and my dad used to say to me, “Emotional abuse is more damaging than physical abuse. Your physical hurts heal.” That’s what he used to say. When I got older, I had thoughts of suicide, inflicting pain on myself which I did. I used to slash my arms, pierce my arms, my body and I destroyed myself with alcohol which the government introduced of course.100
The children in residential schools were powerless to take healing measures. They were denied access to traditional foods and to families, traditional healers, and communities who could have helped them, according to Aboriginal ways, to deal with the physical, mental, emotional, and spiritual elements of ill health. Because of the isolated location of many of the schools, students were also often denied access to ‘Western’ doctors and nurses. This double denial of health care, based in government policy, continues to this day, due to the relative isolation of many Aboriginal communities, many of which have no road access, and limited access to local health resources.
Health care is a right enshrined in international and constitutional law as well as in Treaties. The United Nations Declaration on the Rights of Indigenous Peoples recognizes that Indigenous peoples have the right to physical and mental integrity, as well as the right to equal enjoyment of the highest attainable standard of physical and mental health. In taking measures to achieve these goals, states are obligated to pay particular attention to the rights and special needs of Elders, women, youth, children, and persons with disabilities.101 Indigenous peoples have the right to be actively involved in developing, determining, and administering health programs that affect them.102 Indigenous peoples also have the right to traditional medicines and to maintain their traditional health practices.103
The Numbered Treaties also established additional legal obligations concerning Aboriginal health and wellness.104 The right to medical care was recognized in Treaties 6, 7, 8, 10, and 11.105 Treaty 6 explicitly included provision of a “medicine chest” and relief from “pestilence.”106 However, the right to health is not limited to these Treaties. The Treaty negotiations included many references to the protection of, and non-interference with, traditional ways of life.107
Call to Action
18) We call upon the federal, provincial, territorial, and Aboriginal governments to acknowledge that the current state of Aboriginal health in Canada is a direct result of previous Canadian government policies, including residential schools, and to recognize and implement the health-care rights of Aboriginal people as identified in international law and constitutional law, and under the Treaties.
There are troubling gaps in health outcomes between Aboriginal and non-Aboriginal Canadians. For example:
The infant mortality rates for First Nations and Inuit children range from 1.7 to over 4 times the non-Aboriginal rate.108
From 2004 to 2008, the “age-specific mortality rate” at ages one to nineteen in the Inuit homelands was 188.0 deaths per 100,000 person-years at risk, compared with only 35.3 deaths per 100,000 in the rest of Canada.109
First Nations people aged forty-five and older have nearly twice the rate of diabetes as the non-Aboriginal population.110
First Nations people were six times more likely than the general population to suffer alcohol-related deaths, and more than three times more likely to suffer drug-induced deaths.111
The overall suicide rate among First Nation communities is about twice that of the total Canadian population. For Inuit, the rate is still higher: six to eleven times the rate for the general population. Aboriginal youth between the ages of ten and twenty-nine who are living on reserves are five to six times more likely to die by suicide than non-Aboriginal youth.112
Obtaining precise information on the state of health of Aboriginal people in Canada is difficult. The most complete information about comparative health outcomes is out of date, much of it coming from the 1990s. Unlike in other countries, the Canadian government has not provided a comprehensive list of well-being indicators comparing Aboriginal and non-Aboriginal populations. The lack of accessible data on comparable health indicators means that these issues receive less public, media, and political attention. In Australia, the government has set a timeline for closing the gap in health outcomes between Aboriginal and non-Aboriginal citizens. The Australian prime minister reports annually on the progress being made to close the gaps in targets related to life expectancy and mortality rates for Indigenous children.113 Canada must do likewise.
Call to Action
19) We call upon the federal government, in consultation with Aboriginal peoples, to establish measurable goals to identify and close the gaps in health outcomes between Aboriginal and non-Aboriginal communities, and to publish annual progress reports and assess long-term trends. Such efforts would focus on indicators such as: infant mortality, maternal health, suicide, mental health, addictions, life expectancy, birth rates, infant and child health issues, chronic diseases, illness and injury incidence, and the availability of appropriate health services.
In 2003, the First Ministers’ Accord on Health Care Renewal recognized the obvious: that Aboriginal peoples face serious health challenges. The accord committed to making the reduction of the gap in health status between Aboriginal and non-Aboriginal peoples a national priority. More than a decade later, that gap remains. In fact, the federal government has moved backwards on issues of Aboriginal health since the signing of the Indian Residential Schools Settlement Agreement and Canada’s apology to Survivors. It has terminated funding to a number of Aboriginal health organizations, including the Aboriginal Healing Foundation and the National Aboriginal Health Organization. These organizations were committed to models of research and treatment in which Aboriginal communities have ownership, control, access, and possession. Their loss significantly limits the development of accurate information about health issues and solutions under Aboriginal control. Health Canada has also cut funding for a number of Aboriginal primary health programs, including programs that address diabetes, fetal alcohol spectrum disorder, youth suicide, infectious diseases, and maternal and child health.114 These cuts have had a serious impact on Aboriginal communities.
Trudy King, a former student at Grandin College residential school, is from Fort Resolution in the Northwest Territories.
When I lost my son here in 2003, I needed counselling for me and my children. I couldn’t get help here anywhere. There was the health and social services coordinator here that I begged and begged to help us, and she said, “There’s no monies. We don’t have monies to get counselling for you and your kids.” I couldn’t go anywhere. Nobody would help us, and, and I didn’t, and it was in 2003. There has to be help out there for people that want, are crying for help. I couldn’t get it. My kids couldn’t get it.115
A former student at Guy Hill residential school in Manitoba, M. R. E. Linklater, also emphasized the need for more community-based services when she spoke with the Commission.
More programs should be put on for our children and our grandchildren and our great-grandchildren ’cause they need to understand why their parents are the way they are. Why so many of our people are so into alcohol and drug addiction, and for myself, I know why, it’s to survive or not to go back there. Our children need more education, support, more programs, not to cut the programs that they have in place.116
Health reforms often involve Aboriginal people in complex jurisdictional disputes and tripartite negotiations with both the federal and provincial or territorial governments. Such jurisdictional disputes have particularly affected Métis, non-status, and urban Aboriginal people, as the federal government insists that providing services to these groups is a provincial and territorial responsibility.
Call to Action
20) In order to address the jurisdictional disputes concerning Aboriginal people who do not reside on reserves, we call upon the federal government to recognize, respect, and address the distinct health needs of the Métis, Inuit, and off-reserve Aboriginal peoples.
Aboriginal health practices and beliefs, like Aboriginal peoples themselves, are diverse. However, an holistic approach to health is common to many Aboriginal cultures and has also been increasingly validated by ‘Western’ medicine. A belief shared among many Inuit, Métis, and First Nation people is that a sacred connection exists among people, the Earth, and everything above it, upon it, and within it. For purposes of healing, this means activities such as “on-the-land” or “bush” healing camps where participants can experience the healing power of the natural world. Traditional practices can also include sweat lodges, cedar baths, smudging, the lighting of the Qulliq (a stone lamp used by the Inuit for ceremonial purposes), and other spiritual ceremonies.117 Best practices for Aboriginal wellness involve a range of services from mainstream health care to traditional practices and medicines, all under community leadership and control. Such an integrated approach has the power to improve the lives of all community members.
Calls to Action
21) We call upon the federal government to provide sustainable funding for existing and new Aboriginal healing centres to address the physical, mental, emotional, and spiritual harms caused by residential schools, and to ensure that the funding of healing centres in Nunavut and the Northwest Territories is a priority.
22) We call upon those who can effect change within the Canadian health-care system to recognize the value of Aboriginal healing practices and use them in the treatment of Aboriginal patients in collaboration with Aboriginal healers and Elders where requested by Aboriginal patients.
Overcoming the health legacy of the residential schools will require a long-term investment in Aboriginal communities, so that communities can revive their capacity to heal themselves. One key investment will be the training of more Aboriginal health and social service professionals. The work that Health Canada’s community cultural and traditional knowledge healing team members did in support of this Commission and other Settlement Agreement processes is but one example of the invaluable service these professionals can provide.
Call to Action
23) We call upon all levels of government to: i. Increase the number of Aboriginal professionals working in the healthcare field. ii. Ensure the retention of Aboriginal health-care providers in Aboriginal communities. iii. Provide cultural competency training for all health-care professionals.
Closing the gap in health outcomes will come about only as part of a comprehensive strategy of change. To be more effective in improving health outcomes, non-Aboriginal medical practitioners must develop a better understanding of the health issues facing Canada’s Aboriginal peoples and of the legacy of residential schools.
Call to Action
24) We call upon medical and nursing schools in Canada to require all students to take a course dealing with Aboriginal health issues, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, and Indigenous teachings and practices. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Residential schools inflicted profound injustices on Aboriginal people. Aboriginal parents were forced, often under pressure from the police, to give up their children to the schools. Children were taken far from their communities to live in frightening custodial institutions, which felt like prisons. The children who attended residential schools were often treated as if they were offenders and were often victimized.
This pattern of disproportionate imprisonment and victimization of Aboriginal people continues to this day. The continued failure of the justice system denies Aboriginal people the safety and opportunities that most Canadians take for granted. Redress to the racist and colonial views that inspired the schools, and effective and long-term solutions to the crime problems that plague too many Aboriginal communities, call for increased use of Aboriginal justice, based on Aboriginal laws and healing practices.
To understand the full legacy of the harms of the schools, it is important to examine how the Canadian legal system responded to residential school abuse. Relatively few prosecutions for abuse resulted from police investigations. In some cases, the federal government actually compromised these investigations—and the independence of the Royal Canadian Mounted Police (RCMP)—to defend its own position in civil cases brought against it by residential school Survivors.
In late 1994, the RCMP established the E Division Task Force to investigate allegations of abuse in British Columbia residential schools. There is evidence, however, that RCMP investigations into abuse were adversely influenced by the federal government’s strategic interests in defending itself in the many civil lawsuits commenced by former students. For example, the government demanded that the RCMP hand over its investigation files related to abuse at the Kuper Island school. Despite some initial objections, the RCMP eventually did turn over the files.118 This was done without due regard for the privacy rights of the complainants in the case, and, in effect, gave the government an advantage in defending itself. When the police force requested the return of these files, the government declined, and then further refused to disclose the information it had received to the Survivors who had brought the civil lawsuits.119
Affidavits filed by RCMP officers suggest that the federal government’s interest in defending itself in civil litigation interfered with police investigations into crimes committed at the residential schools. Although a judge eventually ordered that Survivors should have the same access to RCMP criminal investigation material regarding offences at the Kuper Island school as the government, the whole affair meant Survivors could reasonably conclude that the RCMP was acting as an agent of the federal government, rather than as an impartial enforcer of the law.120
Call to Action
25) We call upon the federal government to establish a written policy that reaffirms the independence of the Royal Canadian Mounted Police to investigate crimes in which the government has its own interest as a potential or real party in civil litigation.
The RCMP E Division Task Force final report notes that “a very common situation that kept occurring over and over again” was that Crown counsel refused to prosecute without corroboration in the form of physical evidence.121 This approach was based on an unwillingness to take the complainant’s own evidence as sufficient to justify a prosecution. It betrays an unwillingness to take the evidence of Aboriginal people as being worthy of belief. At best, the refusal to prosecute without corroboration was based on a belief that the denial of any accused person who occupied a position of authority at the schools would be sufficient to create a reasonable doubt about guilt.
Since 1982, the requirement for corroboration was specifically dropped for sexual offences, and it was never required for non-sexual offences.122 The Commission is concerned that a continued insistence on corroboration has resulted in discriminatory treatment of Aboriginal victims.
The Commission has been able to identify fewer than fifty convictions stemming from allegations of abuse at residential schools. This figure is insignificant compared with the nearly 38,000 claims of sexual and serious physical abuse that were submitted as part of the Independent Assessment Process (IAP), set up under the Settlement Agreement.123
Although there were not many prosecutions for sexual abuse, there were even fewer charges of physical abuse brought against former school staff. The RCMP’s own report suggests that the E Division Task Force viewed physical assaults against Aboriginal children as being less serious than sexual abuse. The RCMP attributed complaints by former students about assaults as evidence of a “culture clash between the rigid, ‘spare the rod, spoil the child’ Christian attitude, and the more permissive Native tradition of child-rearing.”124 This preconception undoubtedly affected the number of prosecutions that occurred for physical abuse at the schools.
Having generally failed to find justice through police investigations and criminal prosecutions, residential school Survivors increasingly turned to the civil justice system in the 1990s, bringing lawsuits against abusers as well as the federal government and the churches that operated the schools. The Canadian legal system, however, was prepared to consider only some of the harms that the Survivors suffered—generally, those harms caused by sexual and sometimes physical abuse. It refused to consider on the merits the Survivors’ claims relating to loss of language, culture, family attachment, and violation of Treaty rights to education. The Canadian legal system refused to consider the claims that Survivors brought on behalf of their parents and their children. It also refused to provide remedies for the collective harms that residential schools caused to Aboriginal nations and communities.
Residential school litigation has been extremely complex, expensive, and lengthy. It has been especially difficult for the Survivors, many of whom were revictimized through explicit questioning and adversarial treatment by the Government of Canada, the churches, and even their own lawyers.
Within the Canadian justice system, complainants in civil proceedings have a limited period of time in which to file suit. If they wait too long after the harm they have suffered, they may not be allowed to pursue their claim because of a provincial statute of limitation. Although statutes of limitation can protect defendants in civil lawsuits, they can also have the effect of denying plaintiffs the opportunity to have the truth of their allegation determined in court. This is most dramatically true for child victims, who have neither the means nor the knowledge to pursue claims of harm until much later, when the time period for a claim may very well have run out.
A statute of limitation defence has to be raised by the defendant. In its 2000 report on responding to child abuse in institutions, the Law Commission of Canada recommended that the federal government should not rely solely on statute of limitation defences.125 Nevertheless, the Government of Canada and the churches have frequently and successfully raised these defences in residential school litigation. The Commission believes that the federal government’s successful use of statute of limitation defences has meant that Canadian courts and Canadians in general have considered only a small part of the harms of residential schools, mostly those caused by sexual abuse. Some provinces have amended their limitation statutes to enable civil prosecutions for a wider range of offences. We urge others to follow suit.
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 conform with the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.
The criminal prosecution of abusers in residential schools and the subsequent civil lawsuits were a difficult experience for Survivors. The courtroom experience was made worse by the fact that many lawyers did not have adequate cultural, historical, or psychological knowledge to deal with the painful memories that the Survivors were forced to reveal. The lack of sensitivity that lawyers often demonstrated in dealing with residential school Survivors resulted, in some cases, in the Survivors’ not receiving appropriate legal service. These experiences prove the need for lawyers to develop a greater understanding of Aboriginal history and culture as well as the multi-faceted legacy of residential schools.
Calls to Action
27) We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
28) We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
During the 1990s, the number of civil lawsuits against Canada and the churches that ran the schools steadily increased. Many of these claims were combined into class actions that were certified by provincial courts. In May 2005, the Government of Canada appointed former Supreme Court Justice Frank Iacobucci as its chief negotiator to help reach a settlement agreement among the many parties involved in litigation: representatives from Aboriginal communities, church groups, the federal government, and Survivors represented by various law firms. The parties reached an agreement in principle in November 2005. The details of the Indian Residential Schools Settlement Agreement were finalized and approved by the federal cabinet on May 10, 2006. The thousands of legal claims made against the federal government and the churches were concluded and settled under the terms of the Settlement Agreement.126
Because the Settlement Agreement would involve the termination of a number of class-action proceedings that the courts had already authorized, it was necessary for courts in most provinces and territories to consider whether the Settlement Agreement was a fair resolution of the claims and, in particular, whether it adequately protected the interests of all the class members.
The Settlement Agreement included a Common Experience Payment (CEP) for everyone who attended one of the residential schools listed in the Agreement. In addition to the CEP, an Independent Assessment Process (IAP) was established to pay compensation to those who suffered sexual or serious physical assaults, such as severe beating, whipping, and second-degree burning, at the schools. The process also included compensation for assaults by other students if they were the result of a lack of reasonable supervision.
The IAP was designed to be an easier process for complainants than litigation. Hearings are held in private with cultural supports for the claimants and health supports provided by Health Canada. In contrast to the protracted nature of much civil litigation, hearings are supposed to be held within nine months, with decisions due shortly after the hearings.
In their statements to the Commission, some Survivors have expressed concerns about the IAP abuse hearing process because it did not allow them to face their abusers directly. Bernard Catcheway, a former student at Pine Creek residential school in Manitoba, told the Commission,
You know and [my abuser’s] still alive. I think she’s eighty-nine years old according to when I went to my hearing three years ago. I wanted her so badly to come to that hearing, you know, but because of her age and because of her, I guess, incompetency, you know, she chose not to be there. I would have loved for her to, to meet her at that time, to basically say I, you know, to say whatever it was that made her do things to us, I was going to say, “I forgive you.” But I never got a chance to say that.127
Other claimants, such as Amelia Galligos-Thomas, a former student at Sechelt residential school in British Columbia, criticized the IAP’s delay in hearing and settling claims.
I’ve been waiting five years now for my appeal, and it hasn’t happened yet. And it’s almost time for them to stop giving the money out to us. And they opened up all our wounds, for what? To turn us all down? And some people are dying…. My sister’s doing drugs, like, ’cause she’s tired of waiting. She’s living on the streets. So, so, why did they do this to us, again? They hurt us again. They shouldn’t go back on their word to us. They already hurt us. Stop hurting us.128
Not all Survivors of residential school abuse were included in the Settlement Agreement. For example, day school students, many Métis students, and pupils from schools in Newfoundland and Labrador have been excluded, as have students who attended government-funded schools that were not identified as residential schools. These exclusions have led to new civil lawsuits against the government. The Commission urges all parties to seek expedited means of resolving this litigation.
Call to Action
29) We call upon the parties and, in particular, the federal government, to work collaboratively with plaintiffs not included in the Indian Residential Schools Settlement Agreement to have disputed legal issues determined expeditiously on an agreed set of facts.
The dramatic overrepresentation of Aboriginal people in Canada’s prison system continues to expand. In 1995–96, Aboriginal people made up 16% of all those sentenced to custody. By 2011–12, that number had grown to 28% of all admissions to sentenced custody, even though Aboriginal people make up only 4% of the Canadian adult population.129 The situation of women is even more disproportionate: in 2011– 12, 43% of admissions of women to sentenced custody were Aboriginal.130
The causes of the over-incarceration of Aboriginal people are complex. The convictions of Aboriginal offenders frequently result from an interplay of factors, including the intergenerational legacy of residential schools. Aboriginal overrepresentation in prison reflects a systemic bias in the Canadian justice system. Once Aboriginal persons are arrested, prosecuted, and convicted, they are more likely to be sentenced to prison than non-Aboriginal people. In 2011–12, Aboriginal people made up 21% of those who received probation or conditional sentences (under which a defendant is found guilty but allowed to remain in the community).131
Parliament has recently passed legislation to prescribe mandatory minimum sentences of imprisonment for certain offences. Judges are required to impose these mandatory minimums. Additional restrictions have also been placed on community sanctions. These decisions have further contributed to the over-incarceration of Aboriginal people in prison. It is assumed that locking up offenders makes communities safer, but there is no evidence to demonstrate that this is indeed the case. There are concerns that Aboriginal people are not receiving culturally appropriate rehabilitative programs in federal prisons, and they are even less likely to have access to such programs in provincial correctional institutions for those people serving sentences of less than two years.
Violence and criminal offending are not inherent in Aboriginal people. They result from very specific experiences that Aboriginal people have endured, including the intergenerational legacy of residential schools. It should not be surprising that those who experienced and witnessed very serious violence against Aboriginal children in the schools frequently became accustomed to violence in later life. One intergenerational Survivor recalled that her mother
never talked about it very much or never expressed it. And she was very quiet, and she had issues with alcohol, and I saw that, and that was basically the only time that she was really aggressive I guess is during those times when she drank…. And my father was also very aggressive. It was a very violent home actually. My brothers used to fight each other, and my brothers would fight my dad, and my mom and my dad would fight, and a lot of violence in the home, actually to the point where my brother, my oldest brother, killed my, one of our other brothers in the home … when I was nine, and I saw the whole thing.132
The Commission heard numerous accounts of the hardships experienced by former residential school students who became involved with the justice system. For many, there were painful parallels between their time in school and their time in jail. For Daniel Andre, the road from Grollier Hall in Inuvik in the Northwest Territories led, inevitably, to jail.
I knew that I needed help to get rid of what happened to me in residential school. Like, everywhere I went, everything I did, all the jobs I had, all the towns I lived in, all the people I met, always brought me back to, to being in residential school, and being humiliated, and beaten, and ridiculed, and told I was a piece of garbage, I was not good enough, I was, like, a dog…. So, one of the scariest things for me being in jail is being humiliated in front of everybody, being made, laughed at, and which they do often ’cause they’re just, like, that’s just the way they are. And a lot of them are, like, survival of the fittest. And, like, if you show weakness, they’ll, they’ll just pick on you even more and … I had to, to survive. I had to be strong enough to survive. I had to, I had to build up a system where I became a jerk. I became a bad person. I became an asshole. But I survived, and learnt all those things to survive.133
It should not be surprising that those who were sexually abused in the schools as children sometimes perpetuated sexual violence later in their lives. It should not be surprising that those who were taken from their parents and exposed to harsh and regimented discipline in the schools and disparagement of their culture and families often became poor and sometimes violent parents later in their lives. It should not be surprising that those who were exposed to poor education and to spiritual and cultural abuse in the schools later turned to alcohol and drugs as a means to cope and try to forget. The consequences for many students and their families were tragic.
Grace Campbell is an intergenerational Survivor.
When I was drinking a lot of things happened to me … I had to do things and a lot of times I just about got killed and then, I thought it was easy. Easy drinking, easy to get the way I was living and I didn’t like it. I was selling my body and I didn’t like it. At the time I didn’t know it but when I look back, some of those creeps I hung with, men and guns and everything, like you know. I was losing my drinking buddies though; they were being murdered and dying.134
Action is required now to overcome the legacy of residential schools that has played a major role in the over-incarceration of Aboriginal people.
Call to Action
30) We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.
In 1996, Parliament legislated principles that would allow offenders who might otherwise be imprisoned to serve their sentences in the community. A centrepiece of these reforms was Section 718.2(e) of the Criminal Code, which instructs judges that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”135
In 1999, in R. v. Gladue, the Supreme Court stated that Section 718.2(e) of the Criminal Code was enacted in response to alarming evidence that Aboriginal peoples were incarcerated disproportionately to non-Aboriginal people in Canada.136 The court stressed that this section is a remedial provision, enacted specifically to oblige the judiciary to make special efforts to find reasonable alternatives to imprisonment for Aboriginal offenders and to take into account the background and systemic factors that bring Aboriginal people into contact with the justice system.137
In some jurisdictions, the Gladue decision has resulted in the production of more extensive pre-sentence, or “Gladue,” reports that detail the background and contextual circumstances of Aboriginal offenders. These reports help inform judges’ sentencing decisions and are meant to encourage alternative options to incarceration. However, bringing these reports to court has not been without difficulty and controversy. Some jurisdictions provide few resources for the intensive, specialized, and culturally sensitive work that is necessary to produce an adequate Gladue report, despite the clear mandate given by the Supreme Court.138
In 2012, the Supreme Court revisited and reaffirmed Gladue. In R. v. Ipeelee, the Supreme Court pointed out that some judges had erred in their application of Gladue by concluding that it did not apply to serious offences or that it required an offender to demonstrate a causal connection between the commission of the crime and the legacy of residential schools or other background or contextual factors that help explain why an Aboriginal offender is before the courts.139
Even if excellent Gladue reports were prepared from coast to coast, they would still fail to make a difference in the amount of Aboriginal overrepresentation in the prison system without the addition of realistic alternatives to imprisonment, including adequate resources for intensive community programs that can respond to the conditions that caused Aboriginal offending.
Call to Action:
31) We call upon the federal, provincial, and territorial governments to provide sufficient and stable funding to implement and evaluate community sanctions that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending.
A failure to provide sufficient and stable resources for the community and treatment programs that are necessary to implement Gladue and Ipeelee helps explain why those decisions have not slowed increasing Aboriginal overrepresentation in prison. In addition to these significant challenges, there are now new barriers to implementing effective and just alternative sentences for Aboriginal offenders.
One of the most dramatic examples of the trend towards mandatory minimum sentence is the Safe Streets and Communities Act (Bill C-10), which came into force in 2012. The Act specifies minimum sentences that judges must impose for certain crimes. As a result of the new legislation, certain offences are no longer eligible for a conditional sentence.140
Bill C-10 and other similar Criminal Code amendments have undermined the 1996 reforms that required judges to consider all reasonable alternatives to imprisonment, with particular attention to the circumstances of Aboriginal offenders. The Commission believes that the recent introduction of mandatory minimum sentences and restrictions on conditional sentences will increase Aboriginal overrepresentation in prison. Such developments are preventing judges from implementing community sanctions even when they are consistent with the safety of the community and even when they have a much greater potential than imprisonment to respond to the intergenerational legacy of residential schools that often results in offences by Aboriginal persons.141
Call to Action
32) We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.
There is another link between the substance abuse that has plagued many residential school Survivors and the over-incarceration of Aboriginal people. Fetal alcohol spectrum disorder (FASD) is a permanent brain injury caused when a woman’s consumption of alcohol during pregnancy affects her fetus. The disabilities associated with FASD include memory impairments, problems with judgment and abstract reasoning, and poor adaptive functioning.142 It is a debilitating cognitive impairment, which children must live with for the rest of their lives, through no fault of their own. A study done for the Aboriginal Healing Foundation drew links among the intergenerational trauma of residential schools, alcohol addictions, and FASD.143 The study concluded that the “residential school system contributed to the central risk factor involved, substance abuse, but also to factors shown to be linked to alcohol abuse, such as child and adult physical, emotional and sexual abuse, mental health problems and family dysfunction.”144
About 1% of Canadian children are born with some form of disability related to prenatal alcohol consumption, but estimates from Canada and the United States suggest that 15% to 20% of prisoners have FASD.145 A recent Canadian study found that offenders with FASD had much higher rates of criminal involvement than those without FASD, including more juvenile and adult convictions.146 The Commission believes there is a need to take urgent measures both to prevent FASD and to better manage its harmful consequences. There is a clear need in Aboriginal communities for more programming that addresses the problems of addiction and FASD.
Call to Action
33) We call upon the federal, provincial, and territorial governments to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.
It is challenging for courts to deal with offenders with FASD, because obtaining an official diagnosis entails a long and costly process of multidisciplinary referrals. Even if trial judges have been educated about the symptoms of FASD, they are generally unable to take notice of FASD without evidence of a diagnosis.147 Clearly, better diagnostic tools are needed, accompanied by sufficient resources for intensive community programs as realistic alternatives to jail and as support for people living with FASD to avoid repeated conflicts with the law.
The recent enactment of mandatory minimum sentences for some offences further complicates the situation of offenders with FASD because it denies judges the flexibility to consider individual circumstances in their sentencing. There is a danger that prison will be used unnecessarily as another expensive crisis intervention for Aboriginal offenders with FASD, even though culturally appropriate supports in the community could often be a more appropriate approach.148 As well as amending mandatory minimum sentencing laws, the federal government can do much more to tailor correctional and parole resources to facilitate the reintegration of offenders with FASD into their communities.
Call to Action
34) We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including: i. Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD. ii. Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD. iii. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community. iv. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.
Studies based on interviews with Aboriginal inmates have confirmed that Aboriginal culture and spirituality can contribute to the healing of the inmates, to increased self-esteem, and to positive changes in lifestyle that make release and reintegration a real possibility.149 Research suggests that recidivism rates for Aboriginal offenders who had participated in spiritual activities (such as sweat lodge ceremonies) were lower than for those who had not.150
However, Aboriginal people receive few services in provincial correctional facilities that are designed for those serving sentences of two years less a day or are awaiting trial. Only a few provinces, such as British Columbia, have Aboriginal justice strategies that include cultural awareness training for officials and contracting with Aboriginal communities to provide spiritual leadership, counselling, and cultural programming for prisoners.151
The need for cultural programs in jail was expressed by a former residential school student who was an inmate at a correctional facility in Yellowknife. The Survivor told the Commission, “It would be nice if our own people would come in here and teach us about life … you know, how to live. This is not the way of life for us. It’s not the way for us people. But if they would teach a program like that, that will catch somebody for sure.”152
There are some federal programs that appear to be working, but Aboriginal inmates do not have access to these programs in all parts of the country. For example, although Aboriginal healing lodges within correctional facilities have great potential to assist Aboriginal inmates, there are only four such lodges run by Correctional Services Canada and four run by Aboriginal communities under Section 81 of the Corrections and Conditional Release Act.153 Lack of funding and difficulties in recruiting and training staff are obstacles to successful expansion of the healing lodge resources. In addition, prisoners must be classified as “minimum security” to be eligible, and 90% of Aboriginal inmates are assigned “medium” or “maximum” security classifications.
Calls to Action
35) We call upon the federal government to eliminate barriers to the creation of additional Aboriginal healing lodges within the federal correctional system.
36) We call upon the federal, provincial, and territorial governments to work with Aboriginal communities to provide culturally relevant services to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.
Aboriginal offenders face many challenges in obtaining parole from prison and beginning their transition back into the community. For many Aboriginal inmates seeking parole, their criminal history is a major factor held against them. Although some research has concluded that criminal history is a reliable risk predictor for both Aboriginal and non-Aboriginal inmates, systemic discrimination related to poverty and the legacy of residential schools undoubtedly disadvantages Aboriginal offenders.154 Just as some courts have the benefit of background and contextual information contained in pre-sentencing reports, parole hearings need a full understanding of an offender’s circumstances when making their decisions.
When the National Parole Board grants parole, correctional programming continues. The early stages of parole are often spent in a residential correctional facility: a halfway house. Although it is not a prison, a halfway house requires the offender to reside there and not be absent except under specific exceptions (for example, supervised absences or employment). It is intended as a transitional phase in an offender’s parole, neither full incarceration nor full freedom in the community, with the goal of gradual reintegration into the community. Unfortunately, there are too few halfway houses that provide programming specifically for Aboriginal offenders.
Call to Action
37) We call upon the federal government to provide more supports for Aboriginal programming in halfway houses and parole services.
The youth justice system, perhaps even more than the adult criminal justice system, is failing Aboriginal families. Aboriginal girls make up 49% of the youth admitted to custody, and Aboriginal boys are 36% of those admitted to custody.155 The current law regarding young people accused of crimes is the Youth Criminal Justice Act, which was introduced in 2002. One of the key objectives of the Act is to reserve jail for the most violent or habitual offenders. Even in such cases, one of the express goals of the youth criminal justice system is to address the circumstances underlying a young person’s offending behaviour in order to rehabilitate and reintegrate them.156 The Act has the flexibility to allow Aboriginal communities to have some measure of control over the youth process and to ensure Aboriginal perspectives are considered in individual cases.
By many objective measures, the Youth Criminal Justice Act has been a success. Since it came into effect, there has been a steady decline in youth crime, youth court caseloads, and youth supervised on community sentences and in custody.157 But one thing the Act has not succeeded in doing is reducing the overrepresentation of Aboriginal youth in the criminal justice system.158 The great vulnerability and disadvantage experienced by so many Aboriginal youth undoubtedly contribute to their overrepresentation, a factor that is intimately tied to the legacy of the residential schools. Many of today’s Aboriginal children and youth live with the legacy of residential schools every day, as they struggle to deal with high rates of addictions, fetal alcohol disorder, mental health issues, family violence, incarceration of parents, and the intrusion of child-welfare authorities. All these factors place them at greater risk of involvement with crime.
The growing overrepresentation of Aboriginal youth in custody mirrors and is likely related to the even more dramatic overrepresentation of Aboriginal children in the care of child-welfare agencies. Research in British Columbia found that 35.5% of youth in care are also involved in the youth justice system, as compared with only 4.4% of youth who are not in care.159 The Commission believes that there are ways to reduce the growing overrepresentation of Aboriginal youth, but that they will be found primarily outside the justice system. There is an urgent need to support Aboriginal families and alleviate the poverty experienced by many Aboriginal communities. The federal government should take the lead by committing the resources necessary to eliminating the overrepresentation of Aboriginal children and youth in care and custody. Part of that commitment should include collecting and publishing better data to measure progress.
Call to Action
38) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
An astonishing number of Aboriginal children were victims of crime in residential schools. By the end of 2014, the Independent Assessment Process had resolved 30,939 sexual or serious physical abuse claims, awarding $2.69 billion in compensation.160 Although not every case would have involved a criminal act, the vast majority did, easily allowing anyone to conclude that the Indian Residential Schools Settlement Agreement involved the largest single recognition of criminal victimization in Canadian history. This victimization of children has carried profound and long-lasting effects. Ruby Firth, a former student at Stringer Hall, told the Commission,
All through my, residential school … I was a victim. They put me in that frame of mind where I was a victim. I was four years old being a victim. Five years old, couldn’t stop it. Six years old, couldn’t stop it. Seven years old, couldn’t stop it. So at some point my brain is going to say, “This is never going to stop!” So that’s what I was doing in my adult life too because it didn’t stop in my childhood, I was doing that in my adult, “This is never going to stop.”161
The justice system continues to fail Aboriginal victims of crime. There are few services available for Aboriginal victims of crime. Victim compensation schemes are often lacking and often fail to recognize the distinct needs of Aboriginal victims of crime.
The statistics are startling. Aboriginal people are 58% more likely to be victimized by crime.162 Aboriginal women report being victimized by violent crime at a rate almost three times higher than non-Aboriginal women—13% of Aboriginal women reported being victimized by violent crime in 2009.163 In the same year, one in ten Aboriginal people reported being a victim of a non-spousal violent crime, more than double the rate reported by non-Aboriginal people.
It is difficult to obtain accurate information about the rate of victimization in Aboriginal communities. According to some studies, less than one-third of victims of crime report their victimization to police, and police forces across the country do not have a consistent method for recording the Aboriginal identity of victims.164 Statistics Canada does not provide the kinds of supports necessary to permit some Aboriginal victims to comfortably disclose their experience to researchers. The most recent Statistics Canada data on homicide and family violence fail to report how many victims were Aboriginal, although older data suggest the homicide victimization rate of Aboriginal people between 1997 and 2000 was seven times that of non-Aboriginal people.165
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.
This data should be used to guide the development and funding of culturally appropriate services for Aboriginal victims of crime and to help make measureable reductions in the overrepresentation of Aboriginal people among crime victims.
Call to Action
40) We call upon all levels of government, in collaboration with Aboriginal people, to create adequately funded and accessible Aboriginal-specific victim programs and services with appropriate evaluation mechanisms.
The overrepresentation of Aboriginal women and girls among crime victims is particularly disturbing. Aboriginal women and girls are more likely than other women to experience risk factors for violence. They are disproportionately young, poor, unemployed, and likely to have been involved with the child-welfare system and to live in a community marked by social disorder.166
Velma Jackson, who attended the Blue Quills residential school in Alberta, told the Commission her story.
A lot of other girls my age were [in Blue Quills], but I only know of one that survived, all the rest are dead today. Some died on the street. Some died prostituting. Others into alcoholism got run over by vehicles. But their children are still alive today…. I can’t to this day wear a dress because of all the things that happened in the school. It was like a sanctuary for pedophiles I would call it, that’s probably why I blocked out so much of my life is because of that.167
The most disturbing aspect of this victimization is the extraordinary number of Aboriginal women who have been murdered or are reported as missing. A report by the , released in 2014, found that between 1980 and 2012, 1,017 Aboriginal women and girls were killed and 164 were missing. Two hundred and twenty-five of these cases remain unsolved.168
More research is needed, but the available information suggests a devastating link between the large numbers of missing and murdered Aboriginal women and the many harmful background factors in their lives. These include: overrepresentation of Aboriginal children in child-welfare care; domestic and sexual violence; racism, poverty, and poor educational and health opportunities in Aboriginal communities; discriminatory practices against women related to band membership and Indian status; and inadequate supports for Aboriginal people in cities. This complex interplay of factors—many of which are part of the legacy of residential schools—needs to be examined, as does the lack of success of police forces in solving these crimes against Aboriginal women.
Call to Action
41) We call upon the federal government, in consultation with Aboriginal organizations, to appoint a public inquiry into the causes of, and remedies for, the disproportionate victimization of Aboriginal women and girls. The inquiry’s mandate would include: i. Investigation into missing and murdered Aboriginal women and girls. ii. Links to the intergenerational legacy of residential schools.
Multi-pronged strategies are necessary to respond to the harmful legacy of residential schools, as demonstrated in part by the overrepresentation of Aboriginal people among prisoners and crime victims. Compiling better data on Aboriginal overrepresentation in the justice system is a starting point. Collection of this data must be coupled with developing measurable goals for reducing this overrepresentation and providing the resources necessary to reach those goals. The approach must be an holistic and culturally appropriate one that addresses the need for improvements in health, education, and economic development in Aboriginal communities.
Any strategy aimed at reducing Aboriginal offending and victimization must also include recognition of the rights of Aboriginal communities to develop their own justice systems as part of a larger commitment to Aboriginal self-determination and self-government. These rights are grounded in international and constitutional law as well as in the Treaties. Aboriginal forms of justice may be as diverse as Canada’s Aboriginal peoples themselves. It is a central conclusion of the Truth and Reconciliation Commission of Canada that recognition of the Aboriginal right to self-determination, more appropriate funding allocations for services from governments, and methodical tracking of progress are the preconditions for redressing the disastrous legacy of residential schools and aiding the long process of reconciliation within Canada.
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 Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.
The Commission is convinced that genuine reconciliation will not be possible until the broad legacy of the schools is both understood and addressed. Governments in Canada spend billions of dollars each year in responding to the symptoms of the intergenerational trauma of residential schools. Much of this money is spent on crisis interventions related to child welfare, family violence, ill health, and crime. Despite genuine reform efforts, the dramatic overrepresentation of Aboriginal children in foster care, and among the sick, the injured, and the imprisoned, continues to grow. Only a real commitment to reconciliation will reverse the trend and lay the foundation for a truly just and equitable nation.
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