Mr. Speaker, [Member spoke in Cree]
[English]
I rise on a point of privilege of prima facie.
[Member spoke in Cree and provided the following translation:]
I am proud to be here.
[English]
On May 4, 2017, I rose in the House of Commons to speak on important issues of violence being committed against indigenous women. In order to make a larger impact, it was felt that it would be appropriate to speak in nehiyo, or the Cree language. Even though I had provided documentation to the translation and interpretative services 48 hours prior to my speaking on May 4, 2017, they were unable to provide a time-appropriate translation during members' statements under Standing Order 31.
It is my belief that my parliamentary privileges have been violated because I could not be understood by my fellow parliamentarians and Canadians viewing the proceedings, thus negating the debate and point that I wished to make. I was effectively silenced, and even though I had the floor and had been duly recognized, my speech was not translated, rendering me silent and thus violating the parliamentary privileges of all MPs present in this chamber. Imagine for an instance if a French Canadian spoke in the House but no translation and interpretative services were provided.
It is is my belief that parliamentarians have a constitutionally protected right to use indigenous languages in Parliament. Subsection 35(1) of the Constitution Act, 1982 states:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Do language rights fall within these provisions?
Professor Karen Drake has written about indigenous language rights in Canada as pre-existing the Canadian state, and these rights have not been extinguished and are still present.
Others, like David Leitch and Lorena Fontaine, have been working towards launching a constitutional challenge, arguing that under subsection 35(1), the federal government has not only a negative obligation not to stifle aboriginal languages but a positive obligation to provide the resources necessary to revitalize those languages.
The latter claim is perhaps the most challenging, while the former is more straightforward. Though the test for establishing an aboriginal right under subsection 35(1) has ballooned into a labyrinth of steps, sub-steps, and sub-sub-steps, the core of the test has remained relatively consistent since the Supreme Court of Canada decision in Van der Peet:
...in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.
Many, including me, argue that indigenous languages easily meet this test. As Leitch puts it, “there is no more distinguishing feature of most cultures than their languages.”
Other arguments also focus on the inherent connection between language and culture, as illustrated by the way in which indigenous languages structure indigenous knowledge.
An additional nuance can be added to this argument. The Supreme Court of Canada's jurisprudence recognizes that the practices, customs, and traditions protected by subsection 35(1) include the laws of aboriginal peoples.
At least some aboriginal languages reflect aboriginal laws. As Doris Pratt and Harry Bone explain:
Our languages are sacred gifts, given to us by the Creator. They carry our way of life, our views of the world, our history, our laws and they bind us to each other.
Thus, at least some aboriginal languages are integral to their respective cultures, not merely insofar as to reflect those cultures, but also insofar as they reflect the laws that are included within the practices, customs, and traditions protected by subsection 35(1).
The analysis thus far may support a negative right to be free from government laws prohibiting aboriginal peoples from speaking aboriginal languages, pursuant to subsection 35(1) and subsection 52(1) of the Constitution Act, 1982.
However, the real issue is whether aboriginal peoples have the right to use their own languages at public expense; in other words, whether governments have a positive obligation to provide aboriginal peoples with government services in aboriginal languages.
Commentators have answered this question in the affirmative by appealing to the Supreme Court's jurisprudence on Canada's official languages.
According to the majority in R. v. Beaulac, 1999:
Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided.
Additional arguments in support of a positive language right can be deduced from the section 35 jurisprudence itself. The Supreme Court has emphasized that the purpose of section 35 is to promote reconciliation between aboriginal peoples and non-aboriginal peoples in Canada. Section 35 should be applied and interpreted in the light of this purpose.
After spending six years gathering 6,750 statements from residential school survivors and others, the Truth and Reconciliation Commission of Canada concluded that reconciliation requires the preservation and revitalization of aboriginal languages, and it issued numerous calls to action on the topic, one of which states:
The federal government has a responsibility to provide sufficient funds for Aboriginal-language revitalization and preservation.
Language figures prominently in the commission's analysis because the very purpose of the residential school system was the destruction of indigenous cultures and language for the sake of assimilating indigenous peoples into a non-indigenous culture. Children were prohibited from speaking in indigenous languages both inside and outside the classroom. As Leitch notes, no other cultural group in Canada has been subject to a state-sponsored attempt to eradicate its language. Thus, the case for a positive obligation on governments in this context is compelling. The federal government took active steps to destroy aboriginal languages, and so reconciliation requires that it take active steps to revitalize these languages.
Parliament is to be the representative of the people of Canada and to uphold the highest principles. Today, the Government of Canada has stated it supports the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, without reservation. Article 13 of UNDRIP states, “Indigenous peoples have the right to revitalize...and transmit to future generations their...languages”, and “[s]tates shall take effective measures to ensure this right is protected...”.
In December of 2016, the Prime Minister stated he was ready to introduce an aboriginal languages act. While there are no laws or rules specifically protecting or governing the use of indigenous languages here in Parliament, it is my belief that, since aboriginal rights are pre-existing, they should be considered a right. While that has not been exercised or supported, it is nonetheless still existing. Cree, because it is my indigenous language, nehiyo, should be considered an official language in the House of Commons. Standing Order 1 states:
In all cases not provided for hereinafter, or by other Order of the House, procedural questions shall be decided by the Speaker or Chair of Committees of the Whole, whose decisions shall be based on the usages, forms, customs and precedents of the House of Commons of Canada and on parliamentary tradition in Canada and other jurisdictions, so far as they may be applicable to the House.
The use of indigenous languages like Cree is not foreign to Canada. The parliamentary tradition has multiple examples, and I would like to enumerate a few other examples of the use of indigenous languages in legislatures in Canada. For instance, in the most recent example, the Senate of Canada provides interpretation and translation services in Inuktitut for Inuit senators. This has been under the visionary leadership of the Hon. Charlie Watt and the Hon. Serge Joyal.
In addition, there are multiple other examples, such as the Legislative Assembly of the Northwest Territories, where indigenous languages have the opportunity for interpretation services. In Manitoba, the hon. James McKay was on the Assiniboia council under President Louis Riel, where Michif, Cree, French, English, and Gaelic languages were used. This legislative assembly was integral to the entry of the Red River, modern-day Manitoba, into Confederation. An example of the openness of the time is the Hon. James McKay. He was an indigenous Métis man of Scottish origin, from a Cree nehiyo mother, and spoke many different languages, including Cree, in official proceedings of the assemblies where he sat.
In an official history prepared by the Manitoba legislature, it is recorded that indigenous languages were used in official proceedings. James McKay was a member of the Legislative Council of Manitoba, the Manitoba upper chamber, and served as its speaker until 1874. He was then elected to the Legislative Assembly of Manitoba. McKay is known to be very proud of his indigenous heritage and used indigenous languages frequently. He was also a member of the North-West Council. In the second session of the Legislative Assembly of Assiniboia, from April 26 to May 9, when discussing the hay privilege, James McKay addressed the assembly in the Cree neyiho language.
I hope these usages, customs, forms, and precedents can be considered as you, Mr. Speaker, craft a just and equitable response to my question of privilege concerning the translation, interpretation, and use of Canada's original languages in the people's chamber, the House of Commons. I am looking for not only the right to use my indigenous language of nehiyo Cree in the proceedings of this House, but that Parliament provide minimal resources so I may participate fully with other members of the chamber in all activities of the House of Commons, and that all other members of the House may participate and interact fully with me in the chamber.
Tapwe akwa khitwam.