National Day for TRC sees First Nations get day in court


The editorial canvas of a broadsheet newspaper is an art that I adore. Headlines can be afforded a gallery of context, nailed into a discrete point in time. For the inaugural National Day for Truth and Reconciliation (NDTR), the juxtaposition of injustice to Indigenous people in the name of settler Courts could not have been more jarring in the Sep. 30 edition of the Toronto Star.

Legacy and lethargic, federal and provincial government appeals to Courts were finally slapped down with a rebuke in judgments to do better, on responsibilities for Indigenous people. Above the front-page fold, Toronto Star ran an illustration created by Hawaii Pichette, a Muskego Cree artist from Treaty 9 territory.

The imagery of orange shirts hearkens to the first Sep. 30 held in 2013. “The image represents the current generation of young people honouring survivors of residential schools and the children who never made it home. The orange flowers represent the buried children who were brought to light this year.”

Below the fold, a 200-point huzzah headline shouts, “THIS IS A STARTING POINT.” Then the eye jumps to the headline below “Ottawa loses court bid over First Nations child welfare”. The Federal Court of Appeal upheld the 2019 ruling of the Canadian Human Rights Tribunal and ordered the federal government to pay $40,000 each to thousands of First Nations children and their families — the maximum amount permitted under the Canadian Human Rights Act.

A second 2019 ruling was upheld which found the federal government to be discriminating against First Nations children on reserves by failing to provide the funding for welfare services to the same extent as elsewhere in the country. Known as “Jordan’s Principle”, the federal government would backstop any costs to prioritize service delivery to First Nations children in need, and end the cruel denial or delay of care in disputes over which level of government would pay. But it’s as if ‘invisibility’ is the subtext message that Canada’s new national day “must be a part of a genuine reckoning with the tragedy of residential schools and their legacy.”

The invisibility is evident, on Sep. 25, the Canadian Conference of Catholic Bishops issues its national apology to Indigenous people in Canada for the suffering endured at residential schools, absent of “concrete actions”, according to the national chief of the Assembly of First Nations (AFN). Within hours, the landmark apology was superseded by headlines concerning the release of the two Michaels Spavor and Kovrig, who landed in Toronto after more than 1,000 days in Chinese custody.

They were greeted by Prime Minister Justin Trudeau, whose fashion misstep for rolled-up sleeves ate up hours of media coverage. This ‘invisibility’ subtext appears to be further borne out by provinces who chose not to officially observe the federal day, and a Prime Minister whose sidebar participation was a media “gotcha” as his private family beach holiday went public on Sep. 30. On June 3, the legislation to create the National Day of Truth and Reconciliation was fast-tracked to make Sep. 30 a statutory annual holiday for federal workers.

The creation of NDTR was a direct response to The Truth and Reconciliation Commission’s Call to Action 80, which called for a federal statutory day of commemoration to acknowledge those affected by residential schools and educate Canadians. The bill materialized within two weeks of the tragic confirmation through the ground-penetrating radar of remains of 215 Indigenous children in unmarked graves at a former residential school in Kamloops, B.C. Just weeks later, on the 25th anniversary of June 21, National Indigenous Peoples Day, the Prime Minister announced Parliament would pass legislation to advance the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN- DRIP).

When UNDRIP was first adopted by the United Nations in 2006, only Canada, the United States, Australia and New Zealand opposed it. It’s a ‘mandated’ victory for Canada’s government to be the last to sign on. In getting down to business on the Indigenous file, we learn Ontario Court of appeal slapped down -– for the third time in 2.5 years — the Ontario government Ontario Lottery and Gaming Commission (OLG) for failing to honour a revenue-sharing agreement it made 13 years ago with a consortium of 132 Ontario First Nations Limited Partnership (OFNLP).

The ruling could potentially cost the provincial government tens of millions of dollars. Christine Dobby reports the OLG failed to inform OFNLP about unilateral changes it allowed to private operators after 2008 to retain nongambling portions of the revenue sharing agreement. In 2019, one of a three-judge arbitration panel called the breach “breathtaking in the age of reconciliation”.

Nonetheless, the Ontario Ministry of the Attorney General is silent as it considers its option to appeal to the Supreme Court of Canada by Nov. 1. It is difficult to gauge if a breached contract is better or worse than a contract not able to be entered into. Business journo Rosa Saba reports how “Indigenous firms hit especially hard by a pandemic; experts say” as COVID-19 put nascent indigenous tourism almost entirely on pause. Small businesses in remote areas often didn’t qualify for federal programs because of size, structure and tenure. For example, more than one-third of Indigenous-led businesses in a 2020 survey didn’t have a relationship with traditional lenders such as a bank or a credit union.

Instead, they work with Aboriginal Financial Institutions (AFI). The Canadian Council for Aboriginal Business (CCAB) is urging that COVID-recovery funding reach Indigenous businesses through this channel. It is essential that days in Court move through due process of the judicial calendar if the rule of law is to be upheld. The merit question, unsettling as it may be – is that the focus on Truth and Reconciliation must first pass through the lens on laws that manifest equitable intent, application and enforcement.

Disclaimer. The opinions expressed in this story are those of the authors and do not necessarily represent the official policy or position of Asia Metro News Magazine.

About the author

Asia Metro Editor

Surjit Singh Flora
[email protected]

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