May 10, 2016 By:

Canada’s Indigenous languages are in danger of disappearing. The Truth and Reconciliation Commission has urged the government to make Indigenous language education a priority so that these traditions can be carried on into future generations.

The problem is rooted in Canada’s history of residential schools, where the government intentionally tried to stamp out Indigenous cultures and languages through a policy of assimilation. As a result, many former students have lost, to one degree or another, the ability to speak and understand their own languages. Communities are now trying to make sure that their languages are taught to the younger generations before the knowledge is lost forever.

Some Indigenous groups have already achieved publicly funded education in their own languages, through modern treaties or other agreements. Recently, however, there have been suggestions that the ability to educate one’s children in an Indigenous language could be claimed as an Aboriginal right under the Canadian Charter of Rights and Freedoms.

This issue raises interesting questions about the scope of Aboriginal rights under the Charter. Section 35 is commonly associated with hunting, fishing and trapping rights, but it can be applied to any practice that meets the “Aboriginal right” test set out by the Supreme Court of Canada.

It would not be difficult to establish that the right to speak and teach an Indigenous language is an Aboriginal right as defined by the Supreme Court.

First, these practices are integral to Indigenous communities’ distinctive cultures, as a community’s language is deeply connected to its members’ worldview and way of life.

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Second, Indigenous peoples were speaking and teaching their languages long before contact with European colonizers (or before effective European control, in the case of the Métis). Although Crown policies have interfered with many individuals’ ability to learn their own languages, the point of Aboriginal rights is that they are collective – if there are members of the community who still speak and teach the language, then there is continuity with pre-contact practices.

Finally, although a court case might turn up evidence to the contrary, it does not appear that Canada ever passed legislation explicitly taking away the rights of Indigenous peoples to speak or pass on their traditional languages. Absent a clear act of “extinguishment”, the Aboriginal right continues to exist today.

The more difficult question is whether Indigenous people have a right to publicly funded Indigenous language education. Charter rights are generally considered to create a negative obligation on government – that is to say, the government is not allowed to interfere with the exercise of the right. The government is not usually required to take positive action to facilitate the exercise of a right unless the Charter explicitly says so.

Section 23 of the Charter creates certain positive obligations for the government to fund minority-language education in English and French. Unlike section 35, this constitutional right arose from a negotiated compromise between English and French Canadians, rather than from traditional practices. It cannot be relied upon to establish a similar language education right for Indigenous peoples.

However, s. 23 reflects an understanding that minority language education is not practicable without public funding, and that leaving minority language speakers to their own devices is not enough to preserve the language for future generations. The same principle could apply to Indigenous language education rights.

The Crown has a duty to avoid actions that will result in a deterioration of Aboriginal rights. This may require the expenditure of public money to accommodate those rights. The duty to consult with Indigenous groups – before they have even proven that their Aboriginal rights exist – illustrates this principle.

There is a convincing argument to be made that s. 35 of the Charter requires the government to fund Indigenous language education.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Indigenous Law