Tansi Nîtôtemtik,
Yesterday we talked about Indigenous Peoples taking action to protect their languages and the systemic issues that seem to be impeding progress. We noted that the Indigenous Languages Act[1] recognizes that Aboriginal rights[2] “include rights related to Indigenous languages.”[3] Today we explore what this protection actually entails by going through the legal test for Aboriginal rights. Is language an Aboriginal Right?
Artwork: Daphne Houle “Rebirth of a Culture”
Purposive Interpretation
When courts set out to interpret section 35(1) rights, it must take a “purposive approach.”[4] A purposive approach means that courts must give “a generous, liberal interpretation”[5] of the words in statutory provisions that protect the interests of Indigenous Peoples.[6] It also means that courts must interpret the law in a way that aligns with the purpose that section 35(1) is supposed to achieve. Namely, “to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[7]
In other words, when the courts set out to explain what “rights related to Indigenous languages” means, they must interpret that wording generously and for the purpose of reconciliation.
Legal Test for Aboriginal Rights
In 1996, the Supreme Court of Canada set out the legal test for Aboriginal Rights.[8] The claimant must:
characterize the “precise nature” of the asserted right;
bring evidence to prove that the claimed right is grounded in a “pre-contact practice, tradition or custom” that was “integral to the distinctive pre-contact Aboriginal society;”[9] and
establish that the claimed right is connected to and is a continuation of that pre-contact practice.
Let’s explore each of these steps to understand what “rights related to Indigenous languages” could mean.
Characterization
In Canadian law, an Aboriginal right cannot be characterized too broadly. On its face, this does not appear to meet the “generous interpretation” required by the purposive approach. But it’s important to remember that the purposive interpretation applies to section 35(1) and the legislation that protects Aboriginal interests. The characterization of the right itself is a separate concept that the courts do not interpret purposively.
Traditionally, our courts worry that broadly-stated Aboriginal rights would lead to “overclaiming” a right so it could be used to defend against any Crown action.[10] (Whether this argument is valid is a question for another day.) Instead, courts require that claimants establish the “precise nature” of their asserted right. Further, that right must be expressed as a practice,[11] like fishing in particular waters or harvesting wild rice in certain fields.
In this light, “Indigenous language” on its own is probably too broad to meet the current test and is not expressed as a practice. So it makes sense that legislation frames it as “rights related to Indigenous languages”. The legal challenge will be to define how a practice is “related” to Indigenous language. What does “related” mean? And what degree of “relation” is required?
For example, there could be a right to educate Indigenous children in their traditional language on reserve, where educating children in their traditional language is inherently related to Indigenous language. In theory, this would be sufficiently precise to meet the legal test, it is framed as a practice, and it is “related” to Indigenous language.
Practice, Tradition or Custom
This step requires the claimant to show evidence that their claimed right — a language-related practice — existed before European contact, and that this practice was “integral to the distinctive pre-contact Aboriginal society.”[12] Again, it is not sufficient to say that the claimant’s language existed before European contact. It’s the particular practice related to language that is important, and it must have been exercised by the Indigenous community.
Returning to our example, to establish a right to educate Indigenous children in their traditional language on reserve, the claimant must show evidence that their community educated their children in their traditional language before European contact. There is plenty of evidence in the TRC Final Report to show that education in traditional languages was “integral” to pre-contact Indigenous societies.[13] The challenge at this stage is to adduce evidence to this effect.
Continuity
The final step of the test is to show that the asserted right can be “reasonably regarded as a continuation of … the pre-contact practice.”[14] In our example, someone might claim that the traditional practice of educating children from pre-contact times is different from education today. That the methods of teaching children were fundamentally different centuries ago than they are today.
This argument is unlikely to stand. The legal test for continuity is generally interpreted flexibly because the courts recognize that a traditional practice can evolve over time and take on more modern characteristics.[15]The method of delivering education to Indigenous children should be able to evolve over time and even take on characteristics of European-style teaching methods. The crux of the claimed right is not the method of teaching, but rather the language in which it is conducted.
Conclusion
Although the Indigenous Languages Act recognizes that Aboriginal rights “include rights related to Indigenous languages,”[16] it does not necessarily guarantee a right to Indigenous language. The courts will be asked to define what rights are protected under this statute and they will likely apply the established test for Aboriginal rights.
To claim an Aboriginal right related Indigenous language, the main challenge will likely be to frame the asserted right as a practice of a “precise nature” that is “related” to Indigenous language. There must be evidence to show that the practice existed before European contact and that it was “integral” to the community’s society. Finally, there must be some degree of continuity between the pre-contact practice and the asserted right, even if the practice has evolved over time.
Indigenous language does not appear to be an Aboriginal right. But traditional practices related to Indigenous languages could be.
Until next time,
ReconciliACTION YEG
[1] Indigenous Languages Act, SC 2019, c 23, art 6. [2] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 art 35 [Constitution Act, 1982]. [3] Indigenous Languages Act, supra note 1 art 6. [4] R v Desautel, 2021 SCC 17 at paras 27 and 31 [Desautel]. [5] R v Sparrow, 1990 CanLII 104 (SCC) at 1106. [6] R v Van der Peet, 1996 CanLII 216 (SCC) at para 24 [Van der Peet]. [7] Desautel, supra note 4 at para 22. [8] Van der Peet, supra note 6 aff’d Lax Kw'alaams Indian Band v Canada (Attorney General), 2011 SCC 56 (CanLII) at 46 [Lax Kw’alaams]. See also Centre for Constitutional Studies, “Aboriginal Rights” (9 September 2021) online: Centre for Constitutional Studies<https://www.constitutionalstudies.ca/2014/03/aboriginal-rights/>. [9] Lax Kw'alaams, supra note 8 at para 44. [10] Ibid. [11] Ibid. [12] Ibid at para 46(2). [13] The Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Legacy (Winnipeg: TRC Canada, 2015), vol 5 at 103-84. [14] Lax Kw'alaams, supra note 8 at para 46(3). [15] Van der Peet, supra note 6 at para 64. [16] Indigenous Languages Act, supra note 1 art 6.