Neither the Canadian Constitution nor federal or provincial laws adequately address the question of aboriginal languages. Even the Indian Act mentions nothing about the languages of the Métis, Inuit, or First Nations.
Aboriginal languages enjoy no specific official recognition in either the 1867 or 1982 version of the Canadian Constitution. Only English and French are constitutionally recognized.
The Constitution Act of 1982 is in fact rather silent on aboriginal language rights. Section 2 guarantees freedom of expression for all Canadians, but experience has shown that such an individual guarantee is ineffective in promoting a language. Section 25 of the Constitution Act of 1982 addresses aboriginal rights but does not mention language:
The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada [...].
On the other hand, section 27 of the act could apply to aboriginal peoples insofar as they form part of the "multicultural heritage of Canadians":
This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
In fact, only section 35 of the Constitution Act of 1982 deals specifically with aboriginal rights:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed .
In the light of the above, it is important to determine whether or not the "existing aboriginal and treaty rights" include a language component. According to Jeffrey Richstone, General Counsel for Legal Services with the Department of Canadian Heritage, there is no current jurisprudence on the point, but certain sections of court judgments provide a bit of direction, and would seem to indicate that the notion of "existing aboriginal […] rights" does include language rights.
However, language protection measures for the Amerindians and Inuit of Canada are nowhere to be found in the 1982 Constitution. This explains why the Assembly of First Nations proposed amending the Constitution at the National Conference on Aboriginal Languages Policy held in January 1986. The First Nations ma de some progress, at least in the draft of the 1992 Charlottetown Accord. Subsection b of the "Canada clause" stated that "the Aboriginal peoples of Canada […] have the right to promote their languages, cultures and traditions and to ensure the integrity of their societies." With that, it would have been possible for natives to preserve their languages and grant them at least some type of local official status through self-government. It is easy to understand the disappointment and exasperation of aboriginal leaders at the subsequent failure of the Charlottetown Accord, which was rejected in the referendum of October 26, 1992. Quebec, Nova Scotia, Manitoba, Saskatchewan, and British Columbia cast a "no" majority vote; nationally, some 55% of Canadians rejected the constitutional agreement proposed by the federal government, the provincial premiers, and native leaders.
The Official Languages Act of 1988 deals solely with English and French and designates them as Canada's official languages. These two languages are better protected since the ir enshrinement in the Canadian Constitution of 1982, in sections 16 to 23 of the Canadian Charter of Rights and Freedoms. But as references there to First Nations peoples are not related to language, one must look elsewhere for legal provisions that could apply to aboriginal languages.
On July 12, 1988, Parliament passed the Canadian Multiculturalism Act. This act does not specifically guarantee the promotion of aboriginal languages; rather, they are included as non-official languages (or immigrant languages) in the "linguistic heritage of Canada." Among other policies, the government seeks to preserve and enhance the use of languages other than English and French, while strengthening the status and use of the official languages (sec. 3.1i); to make use, as appropriate, of the language skills and cultural understanding of individuals of all origins (sec. 3.2e); and to facilitate the acquisition, retention, and use of all languages that contribute to the multicultural heritage of Canada (sec. 5.1f). However, the provisions of the Canadian Multiculturalism Act may well remain symbolic: budgetary restraints have put the act on hold indefinitely.
In 1990, Parliament passed another multiculturalism law: the Canadian Heritage Languages Institute Act. Despite the demands of the First Nations, aboriginal languages were placed on the same footing as the other non-official languages of Canada, whereby a "heritage language" means "a language, other than one of the official languages of Canada, that contributes to the linguistic heritage of Canada" (sec. 2). With the creation of the Canadian Heritage Languages Institute, the government had hoped to implement the Canadian Multiculturalism Act. According to section 4,
The purpose of the Institute is to facilitate throughout Canada the acquisition, retention and use of heritage languages [...].
The Canadian Multiculturalism Act and the Canadian Heritage Languages Institute Act made overtures to recognition of aboriginal languages in what was, all in all, a very halfhearted attempt. Demands by natives that their languages not be classified as other immigrant (or non-official) languages were given short shrift. And practically speaking, the Canadian Heritage Languages Institute Act is all but void—no budget has ever been passed for it.
An attempt to legally recognize aboriginal languages was made in July 1997 with the introduction of The Aboriginal Languages Act. Proposed by the First Nations Confederacy of Cultural Education Centres (FNCCEC), this legislation aimed at recognizing the right and freedom of aboriginal peoples to the protection, revitalization, maintenance, and use of their languages; it also proposed the creation of an Aboriginal Languages Foundation. T he existence of the aboriginal peoples in Canada was deemed a "fundamental and historic characteristic" of Canada; their languages were "vitally important" as a means of transmitting concepts critical to aboriginal cultures, and these concepts must be retained. The act further asserted that over 60 aboriginal languages once existed in Canada, of which 8 are already extinct, 13 near extinction, and 23 seriously endangered, while only four of the remaining 16 have a reasonable chance of survival over the next century. But the legislation did not go beyond the proposal stage and was never reintroduced in the Commons.
Only five of the 13 provincial and territorial governments have developed policies and programs aimed at sustaining aboriginal languages, most of them through community projects.
In 1996, the province passed the Language and Culture Act as part of its First Peoples' Heritage initiative, a program relating to the heritage, languages, and culture of the First Nations. It contains 13 sections, but section 6 specifically addresses language issues.
Purposes and powers
1) The purposes of the corporation are as follows:
(a) to provide capital and operating monies for the creation, maintenance and administration of Native cultural centres and programs throughout British Columbia;
(c) to support and advise ministries of government on initiatives, programs and services related to Native heritage, language and culture;
(d) to advise the government on the preservation and fostering of Native languages and other aspects of cultural development of Native peoples throughout British Columbia;
(e) to consider all matters brought to its attention by the government and, if requested by the government, to report its findings to the government.
Numerous other acts concern Amerindians, such as the Nisga'a Final Agreement Act, the Sechelt Indian Band Self-Government Act, the British Columbia Treaty Commission Act, the Fort Nelson Indian Reserve Minerals Revenue Sharing Act, the British Columbia Indian Cut-off Lands Settlement Act, the Songhees Indian Reserve Act, etc., but none deals with languages.
The Ministry of Education and Training has taken steps to ensure that native languages can be legitimately taught as second languages under the Ontario curriculum. Native language instruction must encourage language maintenance and retention in native students, but also foster positive attitudes and strengthen cultural identity. The Government of Ontario has established two educational policies. One is called People of Native Ancestry and concerns the teaching of content; the other is called Native as a Second Language (NSL) and deals with the teaching of six aboriginal languages: Cree, Ojibway, Delaware, Oneida, Cayuga, and Mohawk. The Native language instruction program was designed mostly for anglicized natives, since Ontario natives generally speak English. Moreover, nothing in the act prevents these languages from also being taught to francophones.
Here are the provisions of a Ministry of Education and Training document entitled Ontario Secondary Schools (1998):
The provisions of the Native as a Second Language (NSL) program recognize that Native languages have a legitimate place in the curriculum of Ontario schools; accordingly, Native languages would be required to be taught as credit courses in Grades 10 to 12 in secondary schools in all jurisdictions offering the NSL program.
Native as a Second Language courses enable students, Native and non-Native, to receive instruction in a Native language. For Native students, Native-language instruction not only encourages language maintenance and retention but also fosters positive attitudes and strengthens cultural identity. For non-Native students, Native-language instruction allows students to acquire competence in a Native language as a second language and an opportunity to develop an appreciation of the language and culture under study.
Like other provinces, Quebec was slow in showing interest in the question of aboriginal rights. Still, since 1975 the Quebec government has adopted numerous measures in its areas of jurisdiction, including languages. Of all the Canadian provinces, only Quebec explicitly recognizes the rights of its aboriginal peoples. The Preamble of the Charter of the French Language states:
[...] the National Assembly of Quebec recognizes the right of the Amerinds and the Inuit of Quebec, the first inhabitants of this land, to preserve and develop their original language and culture;
[...] these observations and intentions are in keeping with a new perception of the worth of national cultures in all parts of the earth, and of the obligation of every people to contribute in its special way to the international community; […]
In administrative practice, Quebec acts are sometimes translated into Naskapi when they concern the latter. Oral use of an aboriginal language is legally permitted in Quebec in itinerant courts, but judges must render sentences in English or French.
An aboriginal language may be used when dealing with health and social welfare services, and the Naskapi may use their language to communicate with native officers of Sûreté du Québec. Although communication in an aboriginal language with the Government of Quebec or with the federal government is not allowed, official meetings may be held with representatives of the Quebec and federal governments with the help of an interpreter.
In the area of education, two sections of the Charter of the French Language specifically address Amerindic and Inuit languages protected by the 1975 James Bay and Northern Quebec Agreement (signed by the federal and Quebec governments). Section 87 of Bill 101 allows the use of an aboriginal language in schools:
Nothing in this Act prevents the use of an Amerindic language in providing instruction to the Amerinds, or of Inuktitut in providing instruction to the Inuit.
Quebec has authorized the use of some Amerindic languages in elementary and secondary native schools: Algonquin, Attikamek, Montagnais, Micmac, and Mohawk. Section 88 of the French Language Charter contains provisions for the creation of native-run school boards, in particular Cree, Inuit, and Naskapi. In accordance with the Education Act:
Notwithstanding sections 72 to 86, in the schools under the jurisdiction of the Cree School Board or the Kativik School Board, according to the Education Act for Cree, Inuit and Naskapi Native Persons (chapter I-14), the languages of instruction shall be Cree and Inuktitut, respectively, and the other languages of instruction in use in the Cree and Inuit communities in Quebec on the date of the signing of the Agreement indicated in section 1 of the Act approving the Agreement concerning James Bay and Northern Quebec (chapter C-67), namely, 11 November 1975.
The Cree School Board and the Kativik School Board shall pursue as an objective the use of French as a language of instruction so that pupils graduating from their schools will in future be capable of continuing their studies in a French school, college or university elsewhere in Quebec, if they so desire.
After consultation with the school committees, in the case of the Crees, and with the parents' committees, in the case of the Inuit, the commissioners shall determine the rate of introduction of French and English as languages of instruction.
With the assistance of the Ministère de l'éducation, the Cree School Board and the Kativik School Board shall take the necessary measures to have sections 72 to 86 apply to children whose parents are not Crees or Inuit. For the purposes of the second paragraph of section 79, a reference to the Education Act is a reference to section 450 of the Education Act for Cree, Inuit and Naskapi Native Persons.
This section, with the necessary changes, applies to the Naskapi of Schefferville.
Billposting by native municipal or band councils can be in an aboriginal language. Despite the provisions of Bill 178 (no longer in force), commercial billposting is allowed in Algonquin, Attikamek, Cree, Inuktitut, Naskapi, Montagnais, etc. Although "Indian reserves" come under the Department of Indian and Northern Affairs Canada (in accordance with the 1867 Indian Act), Quebec nonetheless grants natives a certain number of rights.
In actual practice, only the Cree-Naskapi (of Quebec) Act (1984) deals specifically with aboriginal languages. This act of federal and provincial Parliament was passed as a follow-up to the James Bay Agreement. Sections 31, 32, and 80 of the Cree-Naskapi (of Quebec) Act grant the Cree and Naskapi bands the right to use their respective languages in conducting their council and band council meetings, and in written resolutions. Still, these are rather flimsy protection measures!
However, Quebec's language policy contains glaring omissions. Like other governments, Quebec appears to consider aboriginal peoples as "ethnic minorities," an interpretation rejected by the First Nations. Natives are critical of the province for too often working in ways that are narrow and sector-based, if not unilateral, without genuine consultation or dialogue. Principles are worded so vaguely as to give rise to arbitrary interpretations by Quebec representatives.
The Northwest Territories
The Official Languages Act of the Northwest Territories contains provisions regarding aboriginal languages. In addition to English and French, seven native languages are recognized as "official aboriginal languages of the Territories" (sec. 5): Saulteux, Cree, Dogrib, Loucheux, North Slavey, South Slavey, and Inuktitut. Sections 6 and 7 of the act concern the use of an aboriginal language in the Assembly. In 1990, the territorial Assembly passed the Act to Amend the Official Languages Act; section 5 was repealed and replaced by the following: "Chipewyam, Cree, Dogrib, English, French, Gwich'in, Inuktitut and Slavey are the Official Languages of the Territories."
The Northwest Territories Education Act (1988) also contained provisions regarding aboriginal peoples. It was stipulated that the language used in aboriginal school boards must be the one used by the majority of its members. Local authorities also have the power to determine the language of instruction for kindergarten and for the first two years of elementary school. For subsequent years, the education minister for the Territories may decide on the language of instruction in the schools. However, in quite a few territorial schools, the language of instruction remains Inuktitut until the secondary level.
Provisions were made under section 23.1 of the Nunavut Act (subsection n) for the territorial Legislature to make laws in all areas, including "the preservation, use and promotion of the Inuktitut language, to the extent that the laws do not diminish the legal status of, or any rights in respect of, the English and French languages":
(1) Subject to any other Act of Parliament, the Legislature may make laws in relation to the following class of subjects: [...]
m) education in and for Nunavut, subject to the condition that any law respecting education must provide that:
(i) a majority of ratepayers of any part of Nunavut, by whatever name called, may establish such schools in that part as they think fit, and make the necessary assessment and collection of rates for those schools, and,
(ii) the minority of the ratepayers in that part of Nunavut, whether Protestant or Roman Catholic, may establish separate schools in that part and, if they do so, they are liable only to assessments of such rates as they impose on themselves in respect to those separate schools;
n) the preservation, use and promotion of the Inuktitut language, to the extent that the laws do not diminish the legal status of, or any rights in respect of, the English and French languages;
Regarding the use of languages in the courts, section 13 of the Act to Amend the Official Languages Act specifies that any person may use English or French. Given that languages other than Inuit, English, and French are not utilized in its territory, it is easy to understand how the Official Languages Act would not cater to the current needs of Nunavut. Yet all of the languages mentioned in it are considered official languages of Nunavut. This is why the Government of Nunavut wishes to repeal this act and pass a new one that would uphold and promote Inuktitut and Inuinnagtun. However, the act must not abolish or lessen the recognized rights of anglophones and francophones, but can add new ones for any language group.
The Legislative Assembly of Nunavut planned to re-examine this language law in 2001 and amend it to more accurately reflect the situation, reality, and needs of Nunavut. In any event, the government estimates that it will take twenty years for all residents (including whites) to learn Inuktitut. Part of the Annual Report of the Commissioner of Official Languages of October 2000 reads as follows:
Included among these is the goal that Inuktitut become the working language of the Government of Nunavut by 2020, and another that Nunavut become, a fully functional bilingual society, in Inuktitut and English, respectful and committed to the needs and rights of French speakers, with a growing ability to participate in French.
In schools, one can teach English, Inuktitut, or Inuinnagtun (with mandatory English as a second language). Many Inuit believe that ancestral languages are not sufficiently taught in schools. In addition, because they are inundated with English music and television, many young Inuit eventually lose their language and culture. Many of them eventually turn their backs on the world of their ancestors.
The Yukon territory has launched an ambitious community program to revitalize aboriginal languages. The mandate of the Canada/Yukon Co-operation and Funding Agreement on the Development and Enhancement of Aboriginal Languages is to guarantee the preservation, renewal, growth, and protection of the Yukon's eight aboriginal languages. Its goal is to cater to the language needs of native communities and offer services to the public in aboriginal languages.
As a whole, the most serious omissions in these provincial policies are that the y tend to be declaratory in nature, providing no details on the technical and financial resources available or target application dates. Canadian language policies regarding First Nations peoples remain tentative and will take some time to lead to formal commitments.