How Canada will return to its historic past of co-equality among the races and cultures

On a summer Tuesday in early June, Canada’s Truth and Reconciliation Commission (TRC) released a list of recommendations and a 300-page summary of the Commission’s final report. The Commission was established in 2008 as part of a settlement agreement to end litigation between former students of residential schools, the Canadian government and churches. The settlement agreement avoided the continuation of costly and often unsatisfying litigation – unsatisfying for the plaintiffs because legalities often left them with no remedies, and for the federal government and the churches that had to defend themselves against legal liability for actions that, to any common sense observer, seemed not only obviously tortious, but plainly criminal.

The Commission’s report lays to rest any doubt that what happened in Canada was the implementation of a systematic, thorough and diabolical government policy to eradicate Indigenous people. The report minces few words: “For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal government; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal people to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of the residential schools were a central element of this policy, which can best be described as ‘cultural genocide.’”

Let us not shy away from what was done to Indigenous people. Beginning in some places in the 1830s, Canada-wide by the early 1900s, and lasting in some places through to the last decades of the 20th century, Indian, Métis and Inuit children were sent to schools at the age of five. Early iterations of the policy built schools on reservation communities, but this proved unsatisfactory to federal officials – including Canada’s first prime minister, John A. Macdonald, who in 1883 told Parliament that “[w]hen 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 […] he is simply a savage who can read and write.” Clearly, formal education – the learning of reading and writing – was not the goal of the residential school system. Instead, the purpose of the residential school system was, in the words of federal deputy minister of Indian affairs, Duncan Campbell Scott, “to continue [the residential school system] until there is not a single Indian in Canada that has not been absorbed into the body politic.” To do this, children would need to be separated from their families where they could be properly taught to hate their cultures and their parents. And so the schools were built far from local communities. Siblings in the same schools were separated by ages, twins were purposefully sent to different schools, and once at residential school, many children did not return to their home communities for a decade or more. In this way, the ties that bind families together – the marking of births and deaths, the simple communion of sharing breakfast, the embrace of someone who loves you – were all denied to Indigenous children.

In the absence of children, what would become of a community? Indigenous people know because for more than a century, their communities did not know the sound of children’s laughter. They came for the children at the age of five, and so Indigenous communities endured generations without children. When the children returned – now as teenagers – they did so having experienced unimaginable loneliness and despair. The TRC report quotes one survivor as saying that he was never comforted; no one was, ever. Children sat crying until they stopped. Affection was foreign. There was systemic physical and sexual abuse. Children were, in this way, taught to abuse others. In one Ontario school, evidence in a criminal trial revealed that residential school staff had constructed an electric chair. It is reported that school officials laughed as small brown legs shot rigid in the chair as electricity coursed through a child’s body – a child whose legs were too short to touch the floor.

These repeated degradations did not destroy Aboriginal people as a collective, but individuals who endured the residential schools left dehumanized. Human beings learn to be parts of a family by being parts of a family. They learn to be brothers and sisters, parents and uncles, aunts and grandparents by existing in these relationships. Survivors of the residential schools learned none of this. The familial bonds of Indigenous families were torn asunder, and virtually nothing has been done to heal these wounds. Parents of my mother’s generation raised my generation without ever having had the experience of being parented, let alone being loved. They struggled, and my own generation, taking our cues from the generation that raised us, struggles again against pain and anger and humiliation that, while distant in time, are ever-present. Our family homes and communities are haunted by memories of unspeakable depravity and neglect. Is it any wonder that suicide rates and alcoholism in Indigenous communities are among the highest in the world?

And here we are. What happened to generations of Indigenous children was carried with them into adulthood, and the lessons learned in residential school were then passed to their children.

It is often very difficult for settler Canadians to understand that the horrors outlined in the TRC report really took place, and still more difficult for settler Canadians to understand the causal links between what happened to my mother’s generation – and the many generations before hers – and what happens and will happen with existing and future generations. What the TRC report does is to make clear that the horror is not a nightmare, but rather a cold hard reality that Canadians must all face together.

The first thing that must be understood – the first step in facing the reality of the residential school system – is to ensure that what happened is not relegated to the past; that is, to reckon with the fact that the effects of the residential school system have pushed through the generations. Settler Canadians must above all understand that, when it comes to residential schools, as William Faulkner once famously put it: “The past is never dead. It’s not even past.”

In light of this, how are Canadians, as a nation, to assemble a response worthy of a just society? The courts’ solution thus far has been to provide survivors with relatively paltry financial disbursements, and to create the Truth and Reconciliation Commission. The Commission’s summary report is a step on the road to truth, and a still greater step will be made when the Commission releases its final report. But what of reconciliation?

The Commission advances 94 ‘calls to action’ – ranging from a mandatory course on Aboriginal people in law schools, reforms in the child welfare system, an apology by the Pope, and the teaching of a Canadian history to school children that hides neither the history nor legacy of residential schools, to the establishment of a National Council for Reconciliation to monitor the implementation of these calls to action. These are all laudable recommendations. Yet to read them in isolation, as most people will have done – if they will have read anything published by the TRC at all – misses the point of a just society’s response to the legacy of residential schools.

What Canada must contend with – the most simple truth that must be accepted, and the fundamental basis with which to read the report’s calls to action – is that Indigenous people never needed to be civilized, because Indigenous cultures always were, and remain today, as valuable and as worthy as Anglophone or Francophone or any other culture of the world. The fundamental premise not only of the residential schools, but of broader racist law and social policy, is that Indigenous culture is inferior to that of the settler peoples. As long as that attitude persists, reconciliation is impossible, and any image of a just Canadian society will remain a tired façade fronting for unspeakable crimes.

To accept Indigenous cultures as being equal to those of Anglo or Franco or to ‘settler culture’ more broadly is to do more than to deem Indigenous culture as one of Canada’s three original founding cultures – even if doing so is likely a necessary step to reconciliation. Something more – indeed a great deal more – is necessary, and the greatest clue what that more might constitute is to look back to the politics and policies of the aforementioned Duncan Campbell Scott. Scott was, as mentioned, Canada’s deputy minister of Indian affairs between 1913 and 1932. He was also a notable poet. He saw his role, and the role of the residential schools, in a clear and unambiguous light – to wit, to absorb Indigenous people into the body politic such that no Indians remain. Scott understood residential schools as being the means through which Indigenous children would be scraped clean of Indigenous culture. The lack of familial attachments would leave Indian children ready to be weaned into the broader political community, not as Indians – for the very notion of Indian identity was to be made abhorrent to residential school attendees – but as proto-citizens who could be lured off the reservation and turned into taxpayers, all the while purposefully freeing the lands of Indian occupiers and making possible progress and the unfettered development of industry.

There is, however, a subversive interpretation of Scott’s ambitions, and one of which Scott himself would doubtless not approve. This subversive interpretation, if plausible, might allow us to give credit to Scott as the progenitor of a just path forward. Rather than reflexively casting out Scott’s ambitions, we might instead today ask: what would it mean for Indigenous people to play an equal role in the body politic of Canadian culture and identity? This is not the same as absorbing Indians into the body politic of Scott’s day, but instead involves integrating Indigenous people into the body politic in ways that we now know to be politically possible: a formal recognition of the equality of different political cultures, languages, geographies and demographics. So much of Canadian political culture is dedicated to the idea of equality, from the role of the Senate as a balance of provincial populations; the recognition of French and English as official languages; the fiscal federalism of transfer payments that seek to mitigate the economic disparities between rich and poor provinces; the presence and use of both French civil law and British common law; and the Charter of Rights and Freedoms that formalizes equality between the sexes. Unlike in Scott’s day, Canada’s current body politic is largely dedicated to implementing institutional equality of all kinds, and so integrating Indigenous peoples into this modern-day body politic is not to assimilate Indigenous people; it is, finally, to recognize the equality and dignity of Indigenous cultures, and further, to embrace the flourishing of those cultures and communities.

In practical terms, to recognize the fundamental equality of Indigenous cultures is to accept some hard truths about political and economic power in Canada. To start, the equality of English and French languages is not abstract equality, though the federal government’s commitment to provision of services in both official languages is a species of abstract equality. Instead, the equality of French and English exists in a concrete geography: French Canadians have a territory in which they exercise linguistic, cultural and political dominance; and this dominance extends over nearly a quarter of the Canadian population, as well as over a territory that is over 15 percent of the colossal territorial base of Canada. To affirm the equality of Indigenous cultures will require that Indigenous culture, politics and languages exist in some place – that is, in a territory in which Indigenous governments and people can flourish. Of course, these places do exist – more or less. Reservations are enclaves of Indigenous culture and people. However, these are small outposts, purposely placed on the least valuable and productive lands, governed by Indian Act governments that have little in the way of law-making authority, and virtually no powers of taxation to raise the money to build basic infrastructure or to provide the social services that non-Indigenous Canadians deem essential to their own communities: potable water, decent schools, and a child welfare system that does not abandon drug-addicted children to the self-care of an inner-city motel room.

Settler Canadians need not fear the reallocation of jurisdiction over federal and provincial lands to Indigenous governments. Indeed, in looking at a map of Ontario one is struck by how little physical presence either federal or provincial government seems to extend over the northern two-thirds of the province: 24 communities do not even have a road connecting them to southern Ontario, or to any other community. In those communities, there are virtually no federal or provincial services vital to the health of southern communities: little effective policing, no schools beyond the primary grades (if there is a school at all), ageing and often broken water treatment plants, no library, nowhere to get a driver’s license or health card, let alone a hospital. And yet in stark contrast to the lack of government services, the federal and provincial governments go out of their way to exercise pervasive and even armed authority over these communities and their traditional territories: selling off mineral and timber rights for government coffers hundreds of kilometres to the south; prosecuting any First Nations person who has sufficient temerity or is cold enough to cut down some trees to build a home; determining the hunting and fishing regimes over territories that 99.99 percent of Ontarians will never see or think about; and distributing to Indigenous Canadians a share of the federal wealth in grudgingly small transfer payments that amount to about one-third of the benefits enjoyed by settler Canadians.

If Indigenous communities were provided jurisdiction over these same matters in their own traditional territories (and where virtually no settler people now live), then Indigenous governments would be in a position to tax the extraction of resources and consequently finance the economic and social development of their own communities. In each of Ontario and British Columbia, provincial coffers are enriched by CDN $300 million annually from stumpage fees alone. This figure is not the value of the timber; it is what the provinces are paid by forestry companies for the right to cut timber.

One might rightly worry about the hole in provincial budgets that such a transfer of economic and legal jurisdiction might create. The answer to this fear is simply to integrate Indigenous governments into the existing system of federal transfer payments: to the extent that Indigenous governments would be enriched by taxing resource development, some fair portion of that GDP could be sent to Ottawa for redistribution to the provinces that have lost out. In this way, we might also recognize that Indigenous governments and territories are, and always have been, subsidizing their southern settler neighbours.

The good news is that, in many ways, we are already on this path. The recent Tsilhqot’in decision in British Columbia paves the way for Aboriginal title to a land base that is coextensive not with the postage stamp-like territory of an Indian reservation (about 1,000 hectares for the Xeni Gwet’in communities who were the plaintiffs in Tsilhqot’in), but coextensive with the entire traditional territory of the First Nations group in question (1,750 square kilometres in Tsilhqot’in). The Constitutional protections set out in section 35 of the Constitution Act, 1982, affirm existing Aboriginal and treaty rights, and there is still some hope that these rights may include the right to a broader set of governmental authorities than is currently recognized by the Indian Act. The call to recognize Indigenous languages as official languages, to teach these languages in public school, and to offer services in these languages, is already being made – notably in the pages of this magazine, and indeed by non-Aboriginal people who recognize the importance of language in defining and affirming culture, geography and history.

Furthermore, section 35’s requirement that Aboriginal communities be consulted and accommodated when their rights are affected by government action creates a commercial environment in which Aboriginal consent is increasingly necessary. This in turn means that international investment in Canada’s resource sector will increasingly turn on the consent of Indigenous people and communities. This is not a new state of affairs for Canada, but rather a return to the old order – a return to a time when Indigenous and settler Canadians maintained a political détente, and both thrived in relative equality.

Indigenous peoples will need to increasingly be brought into resource development projects as truly equal partners. The days of broken deals and promises made with fingers crossed are over. Now is the time that we must turn to one another and ask what it will take to get a deal done. In some places and at some times, no price will be high enough. Some deals may not go through. But that just is the price of dealing with others as equals – the cost of treating each other with equal respect and dignity. And this, if nothing else, is the lesson that we must learn from the Truth and Reconciliation report: Indigenous people never needed to be civilized, and my people’s culture is equal to yours, wherever you are from.

Douglas Sanderson is Associate Professor in the Faculty of Law, University of Toronto.

(ILLUSTRATION: NATE WILLIAMS)