Treaties and Education Between Indigenous Nations and States - Presentation by: Dr. Wilton Littlechild, IPC - Public School Boards' ...
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Treaties and
Education
Between
Indigenous Nations
and States
Presentation by: Dr. Wilton Littlechild, IPC
©
Introduction
It is imperative that we focus on
Education as a priority.
1. Treaty Right to Education
2. Declarations
• UN Declaration on the
Rights of Indigenous
Peoples
• American Declaration on
the Rights of Indigenous
Peoples (OAS
Declaration)
3. Truth and Reconciliation
Calls to Action
4. Principles ©
2
3 UN Declaration on the
Rights of Indigenous
Peoples
The Eagle representing First Nations:
One wing represents the Treaties.
The other wing represents the UN
Declaration.
It takes both wings to lift-up and give our
Rights as First Nations the ability to soar.
©
Instructions given by Maskwacîs
Cree Elders for work in the
International Arena -
Four Treaty Principles:
• Inherent Right to Self-
determination and Cree
government
(Kikpaktinkosowin).
• Original spirit and intent of
Treaty, Treaties as sacred
agreements (Ketchi
Oyichikaywina). Cree
understanding.
• Mutual consent
(Taypihmowin)
• Peaceful coexistence and
mutual responsibility to honor
the international Treaties
(Wetaskiwin)
“As long as the sun shines, the
grass grows and the rivers flow”
© 8
Background on the Journey to Seek Justice
5
Recognizing the urgent need to respect and promote the
inherent rights of indigenous peoples which derive from
their political, economic and social structures and from
their cultures, spiritual traditions, histories and
philosophies, especially their rights to their lands,
territories and resources ©
Preamble
3
Chief Deskaheh Ratana Chief David Latasse
Haudenosaunee (Cayuga) Maori Spiritual Leader Douglas Treaty
Denied access to the League of Nations Chiefs of BC also
approached the
in 1923 & 1925 League of Nations
7
©
7
“Recognizing also the
urgent need to respect
and promote the rights
of indigenous peoples
affirmed in treaties,
agreements and other
constructive
arrangements with
States” -- Preamble,
UN Declaration
©
8
The General Assembly Adopts the UN
Declaration on the Rights of Indigenous
Peoples September 13th, 2007
© 9 9
Considering that the
rights affirmed in
treaties, agreements
and other constructive
arrangements between
States and indigenous
peoples are, in some
situations, matters of
international concern,
interest, responsibility
and character
© 10“Considering also that treaties, agreements
and other constructive arrangements, and
the relationship they represent, are the
basis for a strengthened partnership
between indigenous peoples and States”
-- Preamble, UN Declaration on the
Rights of Indigenous Peoples
11International Indian
Treaty Conference
August 2005
Maskwacîs Cree Nation
Ermineskin Territory
Bear Hills Drum Group
Article 37 - UN Declaration (1) Indigenous peoples have the right
to the recognition, observance and enforcement of treaties,
agreements and other constructive arrangements concluded with
States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.
(2) Nothing in this Declaration may be interpreted as diminishing
or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
© 12Treaty Right
to Education
“Her Majesty agrees to
maintain a school on
each reserve hereby
made, whenever the
Indians of the reserve
should desire it.”
- Treaty 1,
1871
©
13Treaty Right
to Education
The UN Declaration also
states:
“Indigenous peoples
have the right to the
dignity and diversity
of their cultures,
traditions, histories
and aspirations, which
shall be
appropriately
reflected in
education and public
information.” Art. 15
© 14Treaty Rights Affirmed by the
UN Declaration
“Indigenous peoples have the right to the recognition,
observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.” Art. 37.1
15The UN Study on Treaties, Agreements and Other
Constructive Arrangements between States and
Indigenous “populations” (1999)
“ Moreover, the mechanisms through which "autonomy regimes" for
indigenous peoples are being formulated and implemented must be assessed,
on a case-by-case basis, for proof of free and informed consent by all parties
concerned, especially indigenous peoples.” --- Final Report,, Dr. Miguel
Alfonso Martinez, Special Rapporteur [E/CN.4/Sub.2/1999/20 para. 136,
emphasis added]
“Treaties, agreements and other constructive arrangements constitute a means
for the promotion of harmonious, just and more positive relations between
States and indigenous peoples because of their consensual basis and because
they provide mutual benefit to indigenous and non-indigenous peoples ” ---
Report of the 1st UN Seminar on Treaties, Agreements and other Constructive
Arrangements between States and Indigenous Peoples, Geneva December 15th
to 17th, 2003, Chairman-Rapporteur Wilton Littlechild [E/CN.4/2004/11]
16The Declaration calls upon the UN system
and member States to promote, respect
and apply its provisions
“The United Nations, its bodies, including the
Permanent Forum on Indigenous Issues, and
specialized agencies, including at the country level,
and States shall promote respect for and full
application of the provisions of this Declaration
and follow up the effectiveness of this
Declaration.” – Article 42
UN Permanent Forum UN Expert Mechanism
Special Rapporteurs
17UN
DECLARATION FOUR PILLARS
ON THE
RIGHTS OF
INDIGENOUS
PEOPLES
9 THEMES
©
18Treaty Rights and UN Declaration
Corresponding UN Declaration
Treaty Rights
Reference
• Spirit and Intent of Treaty to • Preambular Para.12
Education Articles12,13,14,15,17
• Spirit and Intent to Health • Articles 24(1)(2), 29(3)
19Treaty Rights and UN Declaration
Treaty Rights Corresponding UN Declaration
Reference
• Spirit and Intent of Treaty to • Articles 20(2), 29 (1)(2)(3)
Hunting, Fishing, Trapping and
Gathering
(Right to Food)
20Treaty Rights and UN Declaration
Treaty Rights Corresponding UN Declaration
Reference
• Mutual Consent [Free, prior and • Articles
informed consent] 10,11(2),19,28(1)(2),29(2),30(1),
32(2)
• Implementation
• Articles 41, 42, 46(2)
• Dispute Resolution Mechanisms
• Articles
11(2),12(2),13(2),20(2),21(2),27,
28(1)(2),40
21Treaty Rights and UN Declaration
Corresponding UN Declaration
Treaty - General Reference
• Universal/International Rights • Pream.Paras. 1,16,18,19,21
• Freedom from Fear Articles 1,2,7(1)(2),8(2)(a)(d)
• Freedom of Assembly • Pream.Para.3
• Freedom of Worship • Article 46(1)
• Freedom from Want • Article 12(1)
• Freedom from Discrimination • Preambular
Paras.4,8,8(2)(e),15(2),16(1)(2),17(3
),22(2),29(1)(2)(3)
22The UN
Declaration
on The In its preamble, the UN Declaration is
Rights of described “as a standard of
achievement to be pursued in a spirit
Indigenous of partnership and mutual respect”.
Peoples
23Affirms that the right of self-determination
The UN is universal:
Declaration Article 3: “Indigenous peoples have the
on The right of self-determination. By virtue of
that right they freely determine their
Rights of political status and freely pursue their
economic, social and cultural
Indigenous development.”
Peoples
24The UN Declaration on The Rights of
Indigenous Peoples
Recognizes the right of Indigenous peoples to make their own
decisions
(eg., Arts. 4, 11, 12, 13, 14, 16, 18, 20, 23, 24, 25, 26, 29, 30,
31, 32, 33, 34, 35
Calls on states to “collaborate,” “cooperate” and work “in
conjunction with” Indigenous peoples
(eg., Arts 12, 14, 15, 17, 19, 22, 27, 31, 32, 36, 38)
25On education the Declaration states:
u “Indigenous peoples have the
right to establish and control
their own education systems and
institutions providing education
The UN
in their own languages, in a Declaration
manner appropriate to their
cultural methods of teaching and
on The
learning.” Art. 14.1 Rights of
u “Indigenous individuals,
particularly children, have the
Indigenous
right to all levels and forms of Peoples
education of the State without
discrimination.” Art. 14.2
26Article 14 continued:
The UN u “States shall, in conjunction with
Indigenous peoples, take effective
Declaration measures, in order for indigenous
individuals, particularly children,
on The including those living outside their
Rights of communities, to have access, when
possible, to an education in their
Indigenous own culture and provided in their
Peoples own language.” Art. 14.3
27The Declaration also states:
u “Indigenous peoples have the right to the
dignity and diversity of their cultures,
traditions, histories and aspirations, which
shall be appropriately reflected in
education and public information.” Art. 15
The UN Declaration on The
Rights of Indigenous Peoples
28OAS Article
XXIII –
Treaties, 1. Indigenous peoples have the right to the
recognition, observance, and enforcement of
Agreements the treaties, agreements and other
and Other constructive arrangements concluded with
states and their successors in accordance with
Constructive their true spirit and intent, in good faith, and
to have the same be respected and honored
Arrangements by the States. States shall give due
consideration to the understanding of the
Indigenous Peoples in regards to treaties,
agreements and other constructive
arrangements.
29When disputes cannot be resolved
between the parties in relations to
such treaties, agreements and other
constructive arrangements, these shall
be submitted to competent bodies,
including regional and international
bodies, by the States or indigenous
peoples concerned.
OAS Article XXIII 2. Nothing in this Declaration may be
– Treaties, interpreted as diminishing or
eliminating the rights of indigenous
Agreements and peoples contained in treaties,
agreements and other constructive
Other arrangements.
Constructive
Arrangements
30Article XV. Education
1. Indigenous peoples and individuals, particularly indigenous
children, have the right to all levels and forms of education,
without discrimination.
2. States and indigenous peoples, in keeping with the principle
of equality of opportunity, shall promote the reduction of
disparities in education between indigenous and non-
indigenous peoples.
31Article XV. Education…
3. 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.
4. In conjunction with indigenous peoples, the states shall take
effective measures to ensure that indigenous persons living
outside their communities, particularly children, may have
access to education in their own languages and cultures.
32Article XV. Education…
5. States shall promote harmonious intercultural relations,
ensuring that the curricula of state educational systems
reflect the pluricultural and multilingual nature of their
societies and encourage respect for and knowledge of the
different indigenous cultures. States shall, in conjunction
with indigenous peoples, promote intercultural education
that reflects the worldview, histories, languages, knowledge,
values, cultures, practices, and ways of life of those peoples.
6. States, in conjunction with indigenous peoples, shall adopt
necessary and effective measures to ensure the exercise and
observance of these rights.
33Indian Residential
Schools in Alberta
3435
TRC Calls to Action
The denial of our right to self determination lies at the heart of the
programme of cultural genocide exemplified by the residential
school system.
§ “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.”
TRC, Summary of the Final Report, June 2015
36TRC Calls to Action on Education
6. We call upon the Government of Canada to repeal Section
43 [corporal punishment] of the Criminal Code of Canada.
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.
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.
37TRC Calls to Action on Education
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.
38TRC Calls to Action on Education
10. We call on 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.
39TRC Calls to Action on Education
Call to Action 10 Continued:
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.
40TRC Calls to Action on Education
11. We call upon the federal government to provide adequate
funding to end the backlog of First Nations students seeking a
post-secondary education.
12. We call upon the federal, provincial, territorial, and Aboriginal
governments to develop culturally appropriate early childhood
education programs for Aboriginal families.
41TRC Calls to Action on Education
62. We call upon the federal, provincial, and territorial governments, in
consultation and collaboration with Survivors, Aboriginal peoples,
and educators, to:
i. Make age-appropriate curriculum on residential schools, Treaties,
and Aboriginal peoples’ historical and contemporary
contributions to Canada a mandatory education requirement for
Kindergarten to Grade Twelve students.
ii. Provide the necessary funding to post-secondary institutions to
educate teachers on how to integrate Indigenous knowledge and
teaching methods into classrooms.
iii. Provide the necessary funding to Aboriginal schools to utilize
Indigenous knowledge and teaching methods in classrooms.
iv. Establish senior-level positions in government at the assistant deputy
minister level or higher dedicated to Aboriginal content in
education. 42TRC Calls to Action on Education
63. We call upon the Council of Ministers of Education, Canada to
maintain an annual commitment to Aboriginal education issues,
including:
i. Developing and implementing Kindergarten to Grade Twelve
curriculum and learning resources on Aboriginal peoples in
Canadian history, and the history and legacy of residential schools.
ii. Sharing information and best practices on teaching curriculum
related to residential schools and Aboriginal history.
iii. Building student capacity for intercultural understanding,
empathy, and mutual respect.
iv. Identifying teacher-training needs relating to the above.
43TRC Calls to Action on Education
64. We call upon all levels of government that provide public funds
to denominational schools to require such schools to provide
an education on comparative religious studies, which must
include a segment on Aboriginal spiritual beliefs and
practices developed in collaboration with Aboriginal Elders.
44TRC Calls to Action on Education
65. We call upon the federal government, through the Social
Sciences and Humanities Research Council, and in collaboration
with Aboriginal peoples, post-secondary institutions and
educators, and the National Centre for Truth and Reconciliation
and its partner institutions, to establish a national research
program with multi-year funding to advance understanding
of reconciliation.
45©
46© 47
Principles of Reconciliation
1. UN Declaration on Rights of Indigenous Peoples is the framework for
reconciliation.
2. First Nations peoples have constitutional and Treaty rights that must be
recognized & respected.
3. Reconciliation is process of healing relationships that requires public
truth sharing, apology, commemoration & redress of past harms.
4. Reconciliation requires action to address destructive impacts on
Aboriginal education, language & culture, health, child welfare,
administration of justice, economic opportunity & prosperity.
48Principles of Reconciliation
5. Reconciliation must create more equitable society, closing gaps in social,
health & economic outcomes.
6. All Canadians are Treaty people & share responsibility for mutually
respectful relationships.
7. Perspectives of Aboriginal Elders & Knowledge Keepers re concepts &
practices of reconciliation are vital to long-term reconciliation.
8. Aboriginal cultural revitalization, & integration of Indigenous
knowledge systems, oral histories, laws, protocols & connection to land
are essential to reconciliation process.
9. Reconciliation requires political will, joint leadership, trust building,
accountability, transparency, & investment of resources.
10. Reconciliation requires sustained public education, dialogue, & youth
engagement about history & legacy of residential schools, Treaties &
aboriginal rights, & past and present contributions of Indigenous peoples
to Canadian society. 49CANADA’S GUIDING PRINCIPLES (JULY 2017)
1. All relations with Indigenous peoples need to be based on the
recognition and implementation of their right to self-
determination, including the inherent right of self-government.
2. Reconciliation is a fundamental purpose of section 35 of the
Constitution Act, 1982.
50CANADA’S GUIDING PRINCIPLES (JULY 2017)
5. Treaties, agreements, and other constructive arrangements
between Indigenous peoples and the Crown have been and are
intended to be acts of reconciliation based on mutual
recognition and respect.
6. Meaningful engagement with Indigenous peoples aims to secure
their free, prior, and informed consent when Canada proposes to
take actions which impact them and their rights on their lands,
territories, and resources.
51CANADA’S GUIDING PRINCIPLES (JULY 2017)
9. Reconciliation is an ongoing process that occurs in the context of
evolving Indigenous-Crown relationships.
52Courts Interpretation on Treaties
1. Aboriginal treaties constitute a unique type of agreement and
attract special principles of interpretation:
2. Treaties should be liberally construed and ambiguities or doubtful
expressions should be resolved in favour of the Aboriginal
signatories:
3. The goal of treaty interpretation is to choose from among the
various possible interpretations of common intention the one
which best reconciles the interests of both parties at the time the
treaty was signed:
4. In searching for the common intention of the parties, the integrity
and honour of the Crown is presumed:
535. In determining the signatories’ respective understanding and intentions,
the court must be sensitive to the unique cultural and linguistic
differences between the parties:
6. The words of the treaty must be given the sense which they would
naturally have held for the parties at the time:
7. A technical or contractual interpretation of treaty wording should be
avoided:
8. While construing the language generously, courts cannot alter the terms
of the treaty by exceeding what “is possible on the language” or
realistic:
9. Treaty rights of aboriginal peoples must not be interpreted in a static or
rigid way. They are not frozen at the date of signature. The interpreting
court must update treaty rights to provide for their modern exercise.
This involves determining what modern practices are reasonably
incidental to the core treat right in its modern context:
54TRC Ending is Just the Beginning
• Reconciliation will require the leadership & sustained efforts of
all levels of government
• Reconciliation will require the continuous efforts of
Indigenous & public leaders working together
• Focus should be on the International Year of Indigenous
Languages and the critical and essential role of education.
55Conclusion:
Ways forward
USE UN DECLARATION, OAS
DECLARATION, TREATY AND TRC
CALLS TO ACTION TO INFORM,
IMPLEMENT AND FULLY REALIZE
A DECADE PLAN OF ACTION THE 5-YEAR IMPLEMENTATION
PLAN, WITH A FOLLOW-UP 5
YEAR PLAN OF ACTION TO
ENSURE COMPLETION.
56Maskwacis Cree Honor the 215 Children of
Tk’emlúps Te Sewépemc Indian Residential School
Maskwacis Bear Park – May 31, 2021
Chief Wilton Littlechild – Speaking Points
Thanks to the Chiefs, Councils, Volunteers, Ermineskin Indian
Residential School Survivors, Members, Guests.
Full gratitude to all for your Compassion and Love to come and honor
215 students who were found in Kamloops.
The Truth and Reconciliation Commission of Canada’s “Missing
Children and Unmarked Burials Project” is a systematic effort to record
and analyze the deaths at the schools, and the presence and condition
of student cemeteries, within the regulatory context in which the
schools were intended to operate. The project’s research supports the
following conclusions:
The Commission has identified 3,200 deaths on the Truth and
Reconciliation Commission’s Register of Confirmed Deaths of Named
Residential School Students 4300 and the Register of Confirmed Death
of Unnamed Residential School Students.
©
57• For just under one-third of these deaths (32%), the government and
the schools did not record the name of the student who died.
• For just under one-quarter of these deaths (23%), the government
and the schools did not record the gender of the student who died.
• For just under one-half of these deaths (49%), the government and
the schools did not record the cause of death.
• Aboriginal children in residential schools died at a far higher rate than
school-aged children in the general population.
• For most of the history of the schools, the practice was not to send
the bodies of students who died at schools to their home
communities.
• For the most part, the cemeteries that the Commission documented
are abandoned, disused, and vulnerable to accidental disturbance.
• The federal government never established an adequate set of
standards and regulations to guarantee the health and safety of
residential school students.
• The federal government never adequately enforced the minimal
standards and regulations that it did establish.
©
58• The failure to establish and enforce adequate regulations was largely a
function of the government’s determination to keep residential school costs
to a minimum.
• The failure to establish and enforce adequate regulations was largely a
function of the government’s determination to keep residential school costs
to a minimum.
• The failure to establish and enforce adequate standards, coupled with the
failure to adequately fund the schools, resulted in necessarily high death
rates at residential schools.
Empty Chair for Child Spirit to help me, pray with me, guide me. These
findings are in keeping with statements that former students and the parents
of former students gave to the Commission. They spoke of children who went
to school and never returned. The tragedy of the loss of children was
compounded by the fact that burial places were distant or even unknown.
Many Aboriginal people have unanswered questions about what happened to
their children or relatives while they were attending residential school. “Go
find my little girl”, no Wake, no Feast Ceremony, no Final Travel Songs. The
work that the Commission has begun in identifying and commemorating those
students who died at school and their gravesites needs to be finished.
Remember 17 we brought home unmarked, note 4 at Ermineskin Indian
Residential School. Please keep them in your prayers.
©
59• The work that the Commission has commenced is far from complete.
The National Residential School Student Death Register established
by the Truth and Reconciliation Commission of Canada represents
the first national effort to record the names of the students who died
at school. There is a need to continued work on the register: there
are many relevant documents that have yet to be reviewed. There is
a need for the development and implementation of a national
strategy for the documentation, maintenance, commemoration, and
protection of residential school cemeteries. Such a program, carried
out in close consultation with the concerned Aboriginal communities,
is necessary to properly honour the memory of the children who
died in Canada’s residential schools. And support the families and
communities impacted.
Dr. Wilton Littlechild, IPC
31 May 2021
©
60Hai Hai
©
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