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A Firm Route to Reconciliation

  • March 15, 2019
  • John P. Brown

In 2015, the Truth and Reconciliation Commission released its final report containing a summary of the horrific legacy of Canada’s Aboriginal policies and concluding with 94 “Calls to Action” to address this legacy. 

Responding to these Calls to Action is a fundamental obligation we have as a legal profession because we are charged with the responsibility of upholding the rule of law and ensuring the law protects inclusion and diversity.

The Summary of the Final Report of the Truth and Reconciliation Commission opens with this paragraph:

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide. (emphasis added)

When Prime Minister Sir John A. Macdonald introduced the legislation for these residential schools, he explained to the House of Commons that they were necessary in order “to take the Indian out of the child.” Here’s what else he said:

When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write, his habits, and training and mode of thought are Indian. He is simply a savage who can read and write….Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.  (emphasis added)

More than 150,000 children were forcibly separated from their parents and their families. They were stripped of everything they knew about their own culture, language and traditions.  They were severely punished when they tried to use or practice them. They were even stripped of their own names. 

Children in Residential Schools often suffered severe abuse — physical, sexual, psychological and spiritual. Many children did not survive their ordeal, and those who did survive were traumatized by the abuse they endured, leaving a legacy of dysfunction that has affected their children and grandchildren.

The last federally operated Residential Schools remained open until 1996.

While that was going on, in the 1960s the “Sixties Scoop” began. This was the government’s practice of "scooping up" Aboriginal children from their families with no warning and without consent and placing them in foster homes or for adoption, primarily with white middle class families.  More than 20,000 Aboriginal children were forcibly taken from their families before this practice was stopped in the late 1980s.

The Truth and Reconciliation Report sums up the government’s “legal” treatment of Aboriginals this way:

Canada's laws and associated legal principles fostered an atmosphere of secrecy and concealment. When children were abused in residential schools, the law, and the ways in which it was enforced (or not), became a shield behind which churches, governments, and individuals could hide to avoid the consequence of horrific truths. Decisions not to charge or prosecute abusers allowed people to escape the harmful consequences of their actions. In addition, the right of Aboriginal communities and leaders to function in accordance with their own customs, traditions, laws and cultures was taken away by law. Those who continued to act in accordance with those cultures could be, and were, prosecuted. Aboriginal people came to see law as a tool of government oppression. (emphasis added)

The consequence of all this: Aboriginal people have suffered and continue to suffer due to these indefensible government policies and laws. 

I am Sto:lo on my father’s side. My extended Aboriginal family are from the Fraser River Valley in British Columbia. My father hid his Aboriginal heritage for years because he saw and feared the prejudice and discrimination that “Indians” were subjected to when he was growing up. Members of my Sto:lo family are Residential School survivors who suffered physical, sexual, psychological, and spiritual abuse in the Residential School system.

Many Aboriginal people, including many of my Sto:lo cousins and their children, are still struggling with the horrendous impact of that dark period. 

One of the students at our firm, who is Metis, is the first in her family to attend university, let alone law school. This is not an uncommon story among Aboriginal students of her age.  It is not an uncommon story among members of my own Sto:lo family.

It is because of these “Truths” that the Truth and Reconciliation Report calls for genuine “Reconciliation” with the Aboriginal people of Canada and it does so in these words:

To the Commission, reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.  In order for that to happen, there has to be awareness of the past, acknowledgement that harm has been inflicted, atonement for the causes, and action to change behavior….

Together, Canadians must do more than just talk about reconciliation; we must learn how to practise reconciliation in our everyday lives – within ourselves and our families, and in our communities, governments, places of worship, schools and workplaces.  To do so constructively, Canadians must remain committed to the ongoing work of establishing and maintaining respectful relationships. (emphasis added)

Among the 94 Calls to Action to redress the legacy of residential schools and to advance the process of Canadian reconciliation is one (#27) directed at the legal community. It calls on us 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.

So what should you do to respond to this Call to Action?

You should develop Aboriginal initiatives in your firm that genuinely respond to your obligations to Aboriginal people. You can do this by creating “AURA”: Awareness, which leads to Understanding, which fosters Respect and brings Acknowledgement.

Awareness is created through educational and cultural competency training using local Aboriginal leaders, elders, knowledge keepers, residential school survivors and Blanket Ceremonies.

Understanding is achieved by ensuring the educational and cultural competency training is focused on engendering a deep understanding of the legacy of Canada’s Aboriginal policies, the continuing intergenerational impact of those policies, and the ongoing need for genuine reconciliation.

You should demonstrate sincere and tangible signs of respect at your workplace by adopting, when appropriate, a relevant oral land acknowledgement and traditional Aboriginal practices such as Talking Circles. You can install a permanent land acknowledgement such as a plaque.

There should be an ongoing acknowledgement of the immeasurable contributions to Canada and to Canadian law of Aboriginal peoples who, through their unique life experiences, bring invaluable perspectives and insights to cultural, legal and societal issues that impact us all. 

Reconciliation – it’s your responsibility, and it’s your responsibility to start now.

About the author

John P. Brown is a litigation partner at McCarthy Tetrault LLP and a member of the Giiwedin Anang Council at Aboriginal Legal Services in Toronto.