Alberta Premier Jason Kenney defends John A. Macdonald’s legacy amid backlash over residential schools’ deadly legacy

2021/06/03 Leave a comment

Rare defence these days. But like all historical figures, a mix of the good and the bad, just as we too will likely be judged by future generations:

Alberta Premier Jason Kenney drew criticism Tuesday with a staunch defence of the legacy of Canada’s first prime minister — who is back in the spotlightafter the discovery of a mass burial site of Indigenous children near a former residential school.

Yet another statue of Sir John A. Macdonald was carted off in the back of a truck Tuesday; this time, it was a jaunty seated version of Macdonald removed from a Charlottetown street corner.

The removal in Prince Edward Island was the latest public consequence of Macdonald’s role in creating a residential school system for Indigenous children, which spawned decades of abuse and death.

Three quarters of a country to the west, Kenney decried what he described as the cancellation of one of the architects of the country, “imperfect” though he may have been.

“I think Canada is a great historical achievement,” Kenney told reporters in response to a question that followed an update on his province’s vaccine rollout.

“It is a country that people all around the world seek to join as new Canadians. It is an imperfect country, but it is still a great country, just as John A Macdonald was an imperfect man, but was still a great leader.”

Grand Chief Vernon Watchmaker of Treaty Six, an area that includes much of the central parts of Alberta and Saskatchewan, said in a statement he was “appalled” at the insensitivity of the premier’s comments at a time when Indigenous people from coast to coast are grieving the discovery of the remains of 215 children at a former residential school in Kamloops, B.C.

“The country and the province was established at the cost of our lives and well being,” he said.

“Just when we think we are experiencing acts of reconciliation, the premier contradicts all the efforts towards an understanding.”

Macdonald, a Scottish immigrant who became Canada’s first prime minister in 1867, has been under increasing scrutiny for his role creating the residential schools system. In 1883, Macdonald spelled out in the House of Commons his thinking on the schools, which would come to number more than 130 from coast to coast.

“Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools, where they will acquire the habits and modes of thought of white men,” he said, as quoted in the House of Commons record of debates.

Tuesday is not the first time that Kenney has gone to bat for Macdonald, who, Kenney points out, tried to extend the vote to some First Nations. Last summer, Kenney said he’d like to see a Macdonald statue toppled by protesters in Montreal installed on the grounds of the Alberta legislature.

The discovery of the bodies in Kamloops, however, has triggered a fresh wave of pushback against Macdonald and the other creators of the system.

The Macdonald statue in Prince Edward Island, which news reports note has been defaced several times this year, is going into storage. Meanwhile, a group of students at Ryerson University say they will now refer to the institution as ‘X University,’ because of Egerton Ryerson’s association with the schools. And in Calgary, a school named for cabinet minister Hector-Louis Langevin is being rebranded.

When asked Tuesday, Kenney said he was unaware of that last decision, which had been announced hours earlier and instead, repeated his support for the former first minister.

He said that when he was a federal minister he’d founded a bill to recognize a John A Macdonald Day, to acknowledge the man “without whom Canada would not exist.”

“This is the problem with your line of questioning,” he said, speaking to the reporter who’d asked about the statue. “If the new standard is to cancel any figure in our history associated with what we now rightly regard as historical injustices, then essentially that is the vast majority of our history.”

Kenney listed Tommy Douglas and the Famous Five, who pushed to get the vote for white women, all of whom to some extent supported eugenics as a way to sterilize the weak.

He also mentioned Prime Minister William Lyon Mackenzie King, who made it effectively impossible for Jews to immigrate to Canada during the Holocaust, and prime minister Pierre Trudeau, who brought in martial law that led to the arrest of “thousands of people with absolutely nothing to do with the FLQ Crisis.”

On the other hand, he pointed out that former prime minister Stephen Harper made an official apology to residential school survivors, and that the federal government has provided more than $3.5 billion in restitution.

After the discovery in Kamloops was announced last week, Kenney tweeted that it was a “terrible reminder of the legacy of Canada’s system of aboriginal residential schools.”

His then became the first province to announce it would help fund the search for more unmarked graves, though officials have announced no details or specific dollar amounts so far.

But his unflagging support of Macdonald comes at a time when his government is facing growing fire for failing to educate children about residential schools.

The Truth and Reconciliation Commission has called on every child to learn about residential schools starting in kindergarten. But the proposed curriculum drafted by Kenney’s government doesn’t begin teaching that history until Grade 5.

As reported by CBC, one of the people hired to review the social studies draft, a man named Chris Champion who previously worked for Kenney when he was a federal minister, has called the inclusion of First Nations perspectives in school a fad, and said the blanket exercise commonly used to teach about the effects of colonialism brainwashes children.

Furthermore, some Indigenous leaders asked to consult on the new curriculum have accused the government of engaging in tokenism and of misrepresenting their positions.

Kenney said the new plan would be an improvement over the current curriculum, which doesn’t introduce residential schools until Grade 10 and that the amount of content students will learn increases overall.

“I think that’s the solution, which is to present young people, to present all Canadians, including new Canadians, with a balanced depiction of our history, including the terrible gross injustice and tragedy of the Indian residential schools.”

Source: Alberta Premier Jason Kenney defends John A. Macdonald’s legacy amid backlash over residential schools’ deadly legacy

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Tribes to Confront Bias Against Descendants of Enslaved People

2021/06/01 Leave a comment

Of interest:

With pressure growing from the Biden administration, two Native American tribes in Oklahoma have agreed to consider reversing their policies of denying citizenship to descendants of Black people who were enslaved by them before the Civil War.

The tribes, the Choctaw Nation and Muscogee (Creek) Nation, said they would take initial steps to address the long-running demands of the descendants that they be granted equal rights as tribal citizens, an issue that has split their communities and highlighted clashes over identity and racism among Native Americans.

But the two tribes stopped short of a commitment to grant citizenship to the Black descendants, who are known as Freedmen, instead saying they would open discussions about the issue. In February, the Cherokee Nation eliminated from its constitutionlanguage that based citizenship on being descended from “by blood” tribal members listed on a federal census, the biggest step by a tribe so far to resolve the issue.

Those tribes and others, which had originally inhabited the Southeast, purchased enslaved Black people as laborers in the 18th and 19th centuries, and had brought them along when they were forcibly relocated by the federal government in a deadly ordeal known as the “Trail of Tears.”

Post-Civil War treaties in 1866 gave the formerly enslaved people all the rights of tribal citizenship. But in practice they were segregated and their citizenship rights later denied by a requirement that they be descended from non-Black tribal citizens who were on census lists more than a century ago, a situation that prompted increasing protests in recent years.

“Today we reach out to the Choctaw Freedmen. We see you. We hear you. We look forward to meaningful conversation regarding our shared past,” Gary Batton, chief of the Choctaw Nation, said in a letter announcing that the nation would consider “tribal membership for Choctaw Freedmen.”

David Hill, the principal chief of the Muscogee (Creek) Nation, also wrote to the tribe’s national council proposing town hall events and a period of public comment to discuss citizenship for Creek Freedmen.

Freedmen said the tribes took action only after being pushed into it.

“Black Indians were a part of this tribe, the Choctaw Nation, they lived in the Choctaw Nation,” said Verdie Triplett, a descendant of both Choctaw and Chickasaw Freedmen, and who lives on the Choctaw reservation in Fort Coffee, Okla.

He added: “For them to do this now, they didn’t do it on their own. This right here is a prime example of pressure.”

The announcement from the Choctaw Nation followed a statement this month from Deb Haaland, the first Native American secretary of the Interior, addressing the Freedmen of Native American nations in Oklahoma and acknowledging their rights as citizens of the tribes that had enslaved them.

“The Cherokee Nation’s actions,” Ms. Haaland said, referring to the tribe’s decision to amend its constitution in February to grant equal status to its Freedmen population, had fulfilled “their obligations to the Cherokee Freedmen.”

“We encourage other Tribes to take similar steps to meet their moral and legal obligations to the Freedmen,” Ms. Haaland said, naming four other Native American nations in Oklahoma — the Muscogee (Creek) Nation, the Choctaw Nation, the Chickasaw Nation and the Seminole Nation — that had owned slaves and allied themselves with the Confederacy to preserve slavery as an institution.

With those words, Ms. Haaland waded into a painful reckoning within Native American nations in Oklahoma that had historically owned slaves.

Changes to the Choctaw constitution in 1983 and the Muscogee (Creek) constitution in 1979 required that a citizen of the nation must be descended from “by blood” citizens, disqualifying the Freedmen who were counted separately in the federal census known as the Dawes Rolls of 1906. The Cherokee Nation had also previously expelled its Freedmen, and the Seminole Nation currently grants only limited citizenship to its Freedmen.

Equal citizenship in a Native American nation would qualify the Freedmen for a number of tribal services — including housing, health care and education — much of it funded by the federal government. Older Choctaw and Creek Freedmen recall being eligible for these services before they were expelled from the nations.

Funding in the CARES Act distributed to tribal nations recently funded services exclusively available to “by blood” tribal citizens. Seminole Freedmen who applied were denied because of their limited citizenship in the Seminole Nation.

The Choctaw and Creek Freedmen would also be guaranteed civil and political rights within their nations, such as the ability to vote and run for tribal office.

In interviews, descendants of Freedmen described repeated appeals to the tribes for inclusion as equal citizens and repeated denials on the basis of their race.

“It’s heartbreaking. It really is heartbreaking,” the Rev. McKinley Rice, the senior pastor at St. Matthew Baptist Church in Okmulgee, Okla., and a Creek Freedmen, said. “In the day that we live in, and in the time that we live in, we was hoping and praying that racism and discrimination was, you know, gone.”

The letter from Mr. Batton marked a shift by the Choctaw Nation. Mr. Batton wrote to Speaker Nancy Pelosi nearly a year ago condemning efforts by Representative Maxine Waters, the chairwoman of the House Financial Services Committee, to compel the tribe to re-enroll its Freedmen as citizens by withholding federal funding.

“The Freedman issue is a problem caused by the United States, not the Choctaw Nation,” Mr. Batton said at the time, referring to “America’s enslavement of African Americans” while making no mention that the Choctaw Freedmen are descendants of people enslaved by the Choctaw Nation.

In an interview, Mr. Batton said the federal government played a role in facilitating racist policies like the “by blood” requirement for citizenship. He added that the Interior Department ultimately accepted the constitutional changes from the Native American nations that had expelled the Freedmen in violation of Reconstruction treaties.

“My issue with the federal government is because they’ve implemented policies, and we followed those, and now they’re saying that we should not abide by those policies.” Mr. Batton said. “It’s kind of a Catch 22 as far as I’m concerned.”

Chuck Hoskin Jr., the chief of the Cherokee Nation, who has been a longtime supporter of the Freedmen, said tribes had worked tirelessly to make sure the federal government upholds its treaty obligations. Cherry picking which treaties to uphold undercuts that fight, he said.

“I don’t think any nation is as strong as it can be when it denies its history and suppresses part of its society,” Mr. Hoskin said. “I think that’s what’s happened in respect to the Freedmen.”

The Chickasaw Nation had jointly signed its Reconstruction treaty with the Choctaw Nation, but did not comply with the condition to enroll its Freedmen as citizens. Some Chickasaw Freedmen enrolled as citizens of the Choctaw Nation, but were never included as citizens of the tribe that had enslaved them.

Bill Anoatubby, the governor of the Chickasaw Nation, said in a statement responding to Ms. Haaland’s remarks that “Chickasaw citizenship is a matter of sovereignty and is clearly defined in the Chickasaw Constitution.”

The Seminole Nation did not respond to requests for comment.

LeEtta Osborne-Sampson, a Seminole Freedman who serves on the tribe’s governing council, said she did not expect the Seminole Tribe of Oklahoma to follow suit voluntarily. Ms. Osborne-Sampson said the tribe’s position had long been that it would take a ruling by a higher court to compel them to allow Freedmen to be recognized as equal citizens.

Eli Grayson, a Creek citizen with Freedmen heritage, said he was skeptical of the statements from tribal leadership. He noted that the Freedmen barred from citizenship would have no influence over a vote to change the tribes’ constitutions, and predicted the measures would ultimately fail.

“Citizens today do not have a right to vote on an issue that was settled during the Civil War,” Mr. Grayson said. “They’ve already settled this treaty with the U.S. They don’t have a right to change the conditions of that treaty.”

For the Muscogee (Creek) Nation, race was a key motivation for changing the constitution. In a national council meeting in 1977discussing the changes, the principal chief at the time, Claude Cox, expressed fear that the nation would be outnumbered and replaced by its Black citizens over time.

“The full-bloods lost control. That’s what we’re fighting,” Mr. Cox said.

Mr. Hill, the current principal chief of the Muscogee (Creek) Nation, said in his proposal that citizenship for Freedmen “is a polarizing issue for our citizens.”

“This deeply personal and highly emotional issue goes to the heart of identity for both Creek citizens and the descendants of Freedmen,” Mr. Hill said. “As a nation committed to truth and justice it is important that we reflect upon this issue with an open heart and seek to understand what is right and equitable.”

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Sir John A. statue in Charlottetown will stay, but he’ll have some company

2021/05/13 Leave a comment

Good approach, expanding our knowledge of history and historical figures, the good and the bad,  rather than removal:

The controversial statue of Sir John A. Macdonald in downtown Charlottetown will remain, but with some modifications.

Monday evening, Charlottetown city council voted 8-1 in favour of adopting five recommendations presented by the Abegweit Assembly of Councils, a joint forum that includes the councils of both Abegweit First Nation and Lennox Island First Nation.

The assembly said it had made five suggestions to the city to amend the art installation and “tell the true story of this individual and begin to address the trauma that its presence is continuing to perpetuate,” the statement said.

Source: Sir John A. statue in Charlottetown will stay, but he’ll have some company

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Kushner: Who gets Cherokee citizenship has long been a struggle between tribe, U.S.

2021/03/30 Leave a comment

Of interest:

A recent decision by the Cherokee Nation’s Supreme Court struck down a law that Freedmen – descendants of people enslaved by Cherokees in the 18th and 19th centuries – cannot hold elective tribal office. The ruling is the latest development in a long-standing dispute about the tribal rights available to Black people once held in bondage by Native Americans.

National media reported this news as a victory against racism in the tribe. “Cherokee Nation Addresses Bias Against Descendants of Enslaved People,” reads a representative headline from The New York Times.

But as a scholar of Cherokee law and history, I argue this development can be seen another way: as only the latest chapter in a long struggle between the CN and the federal government over which has the power to determine who should be considered a tribal citizen, and which culture’s values should be most important in that determination.

Status of Freedmen

On Feb. 22, the CN Supreme Court struck the words “by blood” from the CN Constitution. 

This decision means that the 8,500 tribal descendants of Cherokee Freedmen can run for tribal office. Freedmen currently have access to voting and other benefits of citizenship that were not a part of this particular decision.

The CN has wrestled with the tribal citizenship status of Freedmen since U.S. officials forced Cherokees to adopt Freedmen into the tribe in 1866. Part of the tension, stems from the CN commitment to limit citizenship to those meeting certain eligibility requirements – in this case, those who are Cherokee by blood. For the Nation, keeping citizenship exclusive preserves both Cherokee culture and status as a distinct sovereign entity. 

Historically, U.S. officials, often encouraged by public opinion, have wanted Cherokees to adopt U.S. legal and cultural practices. When not attempting to terminate the tribe, U.S. officials have sided with Freedmen whenever tribal citizenship disputes reach U.S. courts. U.S. politicians have also repeatedly threatened to withhold federal money should the CN not grant Freedmen citizenship.

Origins of a conflict

Before living in Indian Territory – now Oklahoma – Cherokees lived for centuries in the American Southeast. Their society was a collection of towns held together by clan affiliation and kinship bonds. 

These clan and kin relationships were the basis of Cherokee social and political life. Their strong communal ethic, with each person playing a particular role in determining the health and strength of the community, supported and was encouraged by the practice of holding land in common; Cherokees did not own land privately. 

Cherokees were also intensely spiritual, believing that frequent personal and communal rituals maintained harmony and balance between all living things. Exclusive membership, limited to Cherokees with few exceptions, was one natural extension of their cultural beliefs and practices. 

Colonists, later U.S. citizens, wanted to acquire Cherokee land and to make Cherokees more like whites in terms of their religious, government and economic practices. That meant that Cherokees would have to abandon their practice of holding land communally, which made land difficult for U.S. settlers to acquire because they could not deal with individuals. 

By the 1820s, Cherokees had adopted many customs and institutions from Americans, including Black slavery, a written language and a constitution. But instead of making the tribe more white – and thereby giving up their lands, as settlers hoped – the CN Constitution declared the tribe’s intent to preserve its lands.

Hungry for Cherokee land and the gold in it, and disdaining the Cherokee way of life, Congress in the 1830s gave the president power to force the Cherokee west. Roughly 16,000 Cherokees, along with many slaves, walked the Trail of Tears to Indian Territory – some 4,000 dying as a result.

1866 treaty

Cherokees rebuilt their nation in what is now northeastern Oklahoma. Enslaved Black labor aided this process. 

When the Civil War began, the Cherokee first joined the Confederacy. The Nation, however, experienced a schism that led most, including Principal Chief John Ross, the Nation’s leader, to flee to the Union side. Ross’ rival, Stand Watie, and others remained with the Confederates.

After the war, the U.S. forced the CN to sign the Treaty of 1866. The tribe’s 1839 Constitution, affirming previous laws, had stated that CN citizens must be descended from Cherokees, not their Black slaves. But in this peace treaty, Cherokees agreed to make their former slaves full tribal citizens. 

This meant granting many who did not share in clan affiliation or Cherokee blood access to tribal services like education and potentially a portion of federal monetary payments.

For many, being a CN citizen was not merely about receiving things from the government – it was also about living the Cherokee lifestyle and dedicating one’s life to that culture. Many Cherokees opposed making Freedmen citizens, since most were not Cherokee by blood. 

Importantly, they did not want U.S. officials dictating who could be a tribal citizen. 

The 1866 treaty stipulated that only Freedmen living on Cherokee land within six months of the signing could be citizens. While some Freedmen did gain citizenship this way, Cherokees used that provision to deny it to those who did not return on time. 

Termination

After the Civil War, U.S. officials, settlers and Freedmen made demands on Cherokee land and resources. Freedmen wanted to build a life – most returned to Cherokee territory from surrounding states, as they were not wanted there.

Settlers wanted Cherokee lands. Christian and philanthropic organizations also pressured U.S. politicians to hasten the “civilization” of Indians. This meant forcing them to adopt American economic and social norms – especially private land ownership. 

The federal government used Freedmen’s petitions for CN citizenship to undermine tribal authority. Freedmen who wanted to live among the Cherokee but were stymied by tribal leaders appealed to the Office of Indian Affairs. Federal representatives, called “Indian agents,” stepped in, superseding Cherokee sovereignty, giving Freedmen (and white settlers) Cherokee land. 

Congress forced the conversion of Cherokee communal lands into individual lots in 1887 with the Dawes Act. As part of this process, U.S. agents counted those living on tribal land – creating the Dawes Rolls, which divided the inhabitants into three categories: Cherokee, white and Freedmen. 

Congress’ ultimately successful goal was to dissolve tribal governments, freeing up land for new American cities and farms in Oklahoma, which achieved statehood in 1907. 

Rebirth

In the 1970s, Congress passed legislation enabling Cherokees to re-form their sovereign government, recognized by the U.S. 

Cherokees drafted a constitution in 1975, re-articulating their sovereignty, including citizenship requirements. 

The CN, 40,000 strong, used the Cherokee Dawes Rolls – excluding the Freedmen list – to determine citizenship. Identifying individual Cherokee by blood had become impossible without some arbitrary reference point; they chose the 1906 list that U.S. agents had compiled to reestablish exclusive citizenship as a sovereign nation. 

Descendants of Freedmen objected to Cherokees not including the Dawes Freedmen list too; Freedmen had wanted citizenship to gain access to tribal services and suffrage. This became an even greater issue as the CN expanded to 200,000 people in the 1990s. 

Cherokees have legally and socially wrestled with whether excluding Freedmen was an act of racism or a show of strength against the U.S. for repeatedly denying tribal sovereignty. 

Freedmen struggled against the CN for decades to secure citizenship, often getting the U.S. involved. In 2017, a U.S. district judge ruled that the Cherokee do not have the sovereign authority to deny citizenship to Freedmen, since they agreed to make them citizens in the Treaty of 1866. 

The 2021 decision to strike “by blood” from the candidate requirement is the next step in that process of debating what Cherokee citizenship means – and how to keep it exclusive despite (U.S. interference).

Source: OPINION: Who gets Cherokee citizenship has long been a struggle between tribe, U.S.

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Diversity is on a collision course with bilingualism at Canada’s top court

2021/03/08 1 Comment

Tend to agree:

Should all Supreme Court of Canada judges — or at least the next one — be bilingual? Should the next vacancy go to a Black, brown or Indigenous jurist, whether they are bilingual or not, to reflect Canada’s population in all its diversity?

It’s a legal dilemma wrapped up in a language debate, tinged with electoral politics, and an existential question about what kind of country Canada is.

The Trudeau government has kicked off both.

On the same day it announced the launch of a search for an Ontario jurist to take the seat of soon-to-retire Justice Rosalie Abella, the Liberal government said it plans to put into law Prime Minister Justin Trudeau’s practice of appointing only “functionally bilingual” judges to the top court.

It was a campaign commitment, and with a whiff of a possible election in the air, Trudeau is ticking off political boxes.

But the “how?” he proposes to do it is less clear. And advocates of greater diversity say mandatory bilingualism will block many qualified candidates from being elevated to the Supreme Court.

Six months ago the Canadian Association of Black Lawyers wrote an open letter to the Trudeau government urging swifter action to address systemic anti-Black racism throughout the justice system and noting “only three Black judges have been appointed under the Trudeau-led government.”

Raphael Tachie, senior counsel for TD Financial Group and president of the association, in an interview said the top court should be a bilingual institution but the requirement “that each individual justice be bilingual disqualifies a lot of really qualified Black and racialized jurists that we think would be great appointments to the court.”

Many practising outside Quebec have not been exposed to French language or training, or “come to the language later on in life and might not always be as proficient as they ought to be. That’s the challenge,” he said, adding “I think the court can compensate for that,” using translators and interpretation. He urges Trudeau to look beyond the Ontario Court of Appeal to lower courts and the bar: “You need to elevate your talent,” he said.

Brad Regehr, the first Indigenous lawyer to lead the Canadian Bar Association, says the same is true for Indigenous candidates who “already face systemic barriers in terms of achieving that proficiency in official languages.” Regehr says it’s time for Trudeau to name someone who is Black, Indigenous or a person of colour to the Supreme Court.

A member of the Peter Ballantyne Cree Nation in Saskatchewan who lives and practices law in Winnipeg, Regehr argues that Canada is “not just a bijuridical state where there’s English common law and French civil law; Indigenous legal traditions form part of the law of Canada and that seems to be forgotten or ignored and the only way you’re going to get any perspective on that is by having an Indigenous judge.”

Both want Trudeau to walk his progressive talk, and do something concrete to promote reconciliation and diversity.

Right now, the Supreme Court of Canada is the only federally-appointed court that is exempt from the Official Languages Act which says all Canadians must be able to access services in federal courts in either English or French. In other words, it puts the onus on federal courts to provide bilingual services, not on prime ministers to appoint only bilingual judges. The Liberals propose to drop the exception.

Trudeau does not intend to change the Supreme Court Act which sets out the eligibility criteria for judicial appointments to the top court.

Rachel Rappaport, a spokesperson for Justice Minister David Lametti, says the bilingual services exemption for the Supreme Court “was never intended to be permanent.”

In 1988 Conservative justice minister Ray Hnatyshyn said during debates on the Official Languages Act that, “It is probably in the national interest at this time that we not put any constraints on the court in the way in which it does its business.” He said that “until we reach a more developed stage of bilingualism across the country,” governments should be able pick from among “the best people who are unilingual, in both languages.”

There have been at least 10 bills introduced over the past 10 years to require top judges be bilingual, according to Jean-Christophe Bédard-Rubin, a doctoral candidate at University of Toronto’s faculty of law. None has passed.

But unilingualism has had an impact, says Bédard-Rubin, who with a colleague has done the first empirical study of the impact of unilingualism on the Supreme Court’s operations. They analyzed cases from 1969 to 2013. In an interview, he said, “There tends to be a linguistic separation of labour at the Supreme Court.”

Despite access to interpreters and translation, anglophone judges “will sit more and write more in cases argued in English and francophone judges will sit more and write more on cases argued in French. And this is regardless of their areas of expertise,” he said. Unilingual judges are less assertive on cases argued in another language and litigants “might lose that expertise” where unilingual judges stand down or just “go with the flow.”

“The general picture that emerges is that language proficiency superimposes itself as another kind of legal specialization in the inner-working of the court,” he wrote.

There’s another twist. Some legal scholars suspect that the Liberals are trying to do through a back door (via the Official Languages Act) what they may not be able to do through the front door (via the Supreme Court Act): that is, rewrite the eligibility rules for judges. That’s because in 2014, the Supreme Court of Canada ruled Parliament “cannot unilaterally modify the composition or other essential features of the court,” saying it requires a constitutional amendment.

Gerard Kennedy, assistant professor in the faculty of law at the University of Manitoba, said it’s debatable whether making bilingualism mandatory is the kind of “essential” characteristic that is protected by the Constitution. And if the Liberals took that route, he said it would quickly become very divisive. “By amending the Official Languages Act, it draws less attention to it.”

But the government seems to have allowed itself some wiggle room — at least for the next appointment. There is one Ontario vacancy coming open on July 1, and another one within two years when Michael Moldaver will turn 75.

The languages law reform document states in drafting the change, the government is weighing the appointment of Indigenous judges to the Supreme Court of Canada along with case law on the court’s “composition and eligibility criteria.”

Meanwhile, the Liberals are using their plan it as a “political chip” as Bédard-Rubin calls it, part of a political strategy to paint the Conservatives as soft on bilingualism.

Trudeau challenged Conservative Leader Erin O’Toole outright in the Commons two weeks ago to commit to naming only bilingual judges on the top court, claiming Conservatives do “not support bilingualism in Canada.”

Conservative justice critic Rob Moore declined an interview request but in an email said, “Conservatives expect appointments to the Supreme Court of Canada are based on competency and legal excellence. Bilingualism or a commitment to learn or improve one’s French will also be a key principle in appointments to the Supreme Court for a future Conservative government.”

The NDP and the Bloc Québécois have long called for bilingual Supreme Court judges.

It’s not clear if the latest proposal will come to pass before a federal election, whenever it comes.

Source: ANALYSIS Diversity is on a collision course with bilingualism at Canada’s top court

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Public Service Disaggregated Data for Visible Minorities and Indigenous peoples, Citizenship status

2021/03/01 Leave a comment

Over the past few months, I have been analyzing the various datasets breaking down public service employment and employee survey data by the individual visible minority and Indigenous groups.

The three articles, What new disaggregated data tells us about federal public service diversity (Policy Options, October 2020), What the Public Service Employee Survey breakdowns of visible minority and other groups tell us about diversity and inclusion (The Hill Times, November 2020) and Diversity and Inclusion: Public Service Hirings, Promotions and Separations (The Hill Times, March 2021) allow for a more comprehensive view of visible minority and Indigenous groups in the federal public service. Moreover, recent Public Service Commission studies analyzing recruitment of employment equity groups add an important element to discussions on public service staffing and recruitment practices.

Much of the debate and discussions have understandably focussed on Blacks in the public service. Yet public service data indicates that their situation is not unique in terms of representation, hirings and promotions and the employee satisfaction, with many commonalities with the other groups. A more granular analysis within each occupational group (i.e., comparing representation at each level by occupational group, as some departments are conducting, may very well provide such evidence).

Key findings are:

  • Overall EE analysis shows considerable variation among the different visible minority and Indigenous groups
  • Visible minorities
    • Correlation between lower educational attainment and representation for most groups save Chinese
    • Overall under-representation common to most groups
    • Blacks, West Asian/Arab small over-representation
    • EX: All groups under-represented save Japanese with Filipino, Latin American and Blacks having the largest gaps
    • Hirings: Hirings of visible minorities have increased for all groups in most occupational groups save for technical and administrative support. Hirings at the EX level have increase for Black, Chinese, South Asian/East Indian and West Asian/Arab, with other groups showing no increase.
    • Promotions: While promotions have increased marginally for virtually all groups at the agregate level, promotions by occupational category provide a mixed picture, with most groups and most occupational categories experiencing a marginal decline in promotions.
  • Indigenous peoples
    • First Nations under-represented, Métis and Inuit over-represented
    • Hirings: While hirings at the EX level have increased slightly, this is less the case for the other occupational categories. Hirings of Métis have increased the most in the operational category, hirings of First Nations the most in the technical category, while hirings of Inuit the most at the EX level.
    • Promotions: A marginal decline across all Indigenous groups and occupational
  • Harassment/Discrimination experiences vary
    • Harassment: Japanese report the most as do First Nations and Métis, Chinese and Filipino least satisfied with resolution as is the case with Métis
    • Discrimination; Blacks report the most, but all groups encounter discrimination on the basis of race, ethnic origin or colour. Black, Japanese and Latin American least satisfied with resolution. All Indigenous groups report having been discriminated against, mainly based on race or ethnic origin, with Métis also least satisfied with resolution

The recent PSC Audit of Employment Equity Representation in Recruitment provides some interesting data and analysis of the staffing process and how the different employment equity groups, and visible minority largest sub-groups, fare at each of the five stages in the staffing process: job application, automated screening, organizational screening, assessment and appointment (FY 2016-17 data).

The most significant stages were organizational screening and assessment where most filtering took place as shown in the table below:

The next table breaks down visible minorities by the largest groups:

As noted in the audit, Blacks have the largest decrease in representation at all stages save for appointment, with a non-negligible being screened out by automatic screening. Chinese are screened out more by organizational screening whereas West Asian and South Asian are more likely to be screened in as the assessment stage.

The audit provides the following explanation for visible minority groups. Overall, visible minority women have higher success rates than visible minority men at the organizational screening and assessment stages. Visible minorities screened out at the organizational screening stage due to citizenship status (Canadian citizens are given preference over non-citizens) and experience qualifications. Those with public service work experience were more likely to be screened in at this stage but overall “experienced less success than their counterparts regardless of whether or not they had federal public service experience.”

At the assessment stage, visible minorities were less successful when written tests were used, particularly the case for Black candidates.

A separate PSC report addresses the Citizenship of applicants and external appointments. While Canadian citizens have a hiring preference, the share of non-citizen applicants has risen from 9.4 percent in 2015-16 to 14.5 percent in 2018-19, with the share of hires has increased to 2.5 percent from 1.5 percent over the same period

Non-citizen visible minority applicants account for 22.9 percent of all visible minority applicants, for non-visible minorities, the share is only 12.1 percent.

The table below contrasts applicants and appointments by citizenship status for the past four years. For Canadian citizens, the percentage of applicants and appointments are comparable, for Permanent Residents and others, appointments are significantly greater than applicants suggesting that citizenship may be less of a barrier than commonly believed.

Visible minority Canadian citizens represented 17.2 percent of all applicants and 19.5 percent of all hires (2018-19).

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Omidvar: The diversity deficit in the boardrooms of Canada’s charities

2021/02/24 Leave a comment

Good op-ed and practical recommendations by Senator Omidvar:

As we celebrate Black History Month, we continue to hear loud calls for more diversity in newsrooms across the country, in corporations, and in Parliament. Canadians have correctly pointed out a diversity gap in all those power structures.

But the diversity deficit doesn’t end there; it’s also in the boardrooms of charities and non-profits. It’s always been an open secret that, despite the amazing work it does to help Canadians from all backgrounds, the sector’s leadership wasn’t that diverse.

In June last year, I issued an open letter challenging charities and non-profits to take a hard look at themselves, and ask what they could do to increase diversity in the sector. Many heard my call and wanted to do more. The first step was getting data.

After learning about my challenge, Statistics Canada, along with sector leaders, designed a survey to provide the first-ever snapshot of diversity in governance. The recently released survey found that, outside of gender, the boards of charities were not yet inclusive of Indigenous peoples, racial minorities, LGBTQ2+, and the disabled.

From Dec. 4, 2020, to Jan. 18, 2021, 8,835 people completed the survey. Among them, 14 per cent identified as immigrants to Canada; 11 per cent said they belonged to a visible-minority group; eight per cent identified as LGBTQ2+; six per cent said they had a disability; and three per cent identified as First Nations, Metis, or Inuit.

Readers may well ask: Why does it matter who sits on the boards, as long as people receive their services? It matters, because the boards of charities set the course, decide on priorities, determine how money gets allocated and spent, and approve institutional policies ranging from hiring to procurement, from harassment to promotions.

Charities are not an insignificant part of our society. More than 85,000 charities and 85,000 non-profits are registered in Canada. Before the pandemic, they employed close to two millions Canadians and contributed eight per cent to the GDP. What they do and how they do it matters.

Now there’s some hard evidence to stand on, we have a clear way forward. Both the government and the sector must respond.

The government must collect diversity data every year. The StatCan survey is a start, but no further studies have been planned. For the sake of certainty, the Canada Revenue Agency should include questions about diversity on boards of directors on the T3010 and the T1044 tax forms.

This way, the data could be fulsome, disaggregated, and provide an accurate picture of diversity in the sector every year. Based on clear, ongoing evidence, the country and the sector could see if progress is being made.

The government should also compel the sector to disclose its diversity plans, as it did with corporations under Bill C-25. Only 30 per cent of the survey participants said their organization had a diversity plan. That is unacceptable, and the government should require that this information be made public.

I’m encouraged that the sector responded to the survey by saying, “(These data are) an important opportunity for us to look critically at who is at the table and who has decision-making power in our organizations.” Now that the evidence is clear, it needs to take concrete action.

First, charities and non-profits must proactively create diversity plans and publish them for their members and Canadians to see; they mustn’t wait for the government to compel them. Second, the plans should include diversity targets to increase the representation of under-represented groups on boards and in senior management. Last, they should convene a sector-wide conversation about race, racism, and diversity.

If we’re truly determined to stamp out racism, we need all sectors to step up to the plate. Charities and non-profits do so much good for Canadians. Now is the time for them to look inward, be intentional, and truly reflect the diversity of Canada.

Source: The diversity deficit in the boardrooms of Canada’s charities

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Audit of Employment Equity Representation in Recruitment

2021/01/29 Leave a comment

PDF Version

Significant and useful, in that it breaks down the various steps in staffing and how different groups are affected at the organizational screening and assessment stages.

Like all research, this begs further work to assess the particular factors that resulted in visible minority and Indigenous candidates being rejected at those stages.

Notable that Black candidate respresentation declined more than other visible minority groups, again suggesting the need for some qualitative analysis of the reasons and rationales for them being selected out:

This audit was undertaken as part of the Public Service Commission (PSC)’s oversight mandate to assess the integrity of the public service staffing system. It is part of a series of initiatives that looks at the performance of the staffing system with respect to the representation of employment equity groups.

Achieving priorities related to diversity and inclusion in the federal public service will ensure that Canadians benefit from a public service workforce that is representative of Canada’s diversity. To date, progress towards a representative federal public service is being made. Of the 4 employment equity groups, 3 are represented at or above workforce availability; persons with disabilities are currently underrepresented in the federal government. These results show that more work and a sustained focus on diversity are required.

This audit focused on advertised recruitment processes as one of the key drivers to improving the representation of employment equity groups in the federal public service. The audit had 2 objectives:

  1. to determine whether the 4 employment equity groups remain proportionately represented throughout recruitment processes
  2. to identify factors that may influence employment equity group representation

This audit looked at 15 285 applications to 181 externally advertised appointment processes from 30 departments and agencies.

We examined employment equity group representation at 5 key stages of the external advertised appointment process (Figure 2 in this report provides more detail on each of these stages):

5 key stages of the external advertised appointment process: job application, automated screening, Organizational screening, Assessment, Appointment

Our focus was to explore whether employment equity groups experienced changes in representation at each stage of the appointment process, and to examine these stages for factors that may have influenced their representation.

Main findings

We found that employment equity groups did not remain proportionately represented throughout the recruitment process.

Our audit results showed that:

  • women were the only group to experience an overall increase in representation from job application to the appointment stage
  • Indigenous candidates experienced a reduction in representation at the assessment stage
  • persons with disabilities experienced the largest drop in representation of any of the employment equity groups, with decreases in representation at the assessment and appointment stages
  • visible minority groups experienced reductions in representation at the organizational screening and assessment stages
  • of the visible minority sub-groups examined in our audit, Black candidates experienced a larger drop in representation than other members of visible minorities, both at the organizational screening and assessment stages

Our ability to identify factors that may influence employment equity representation in recruitment was limited to the information available in the staffing files. Some factors were identified to partially explain the drop in representation of members of visible minorities at the organizational screening stage. However, limited information in staffing files did not provide conclusive evidence of other factors that may be associated with lower success rates of employment equity groups at later stages of the recruitment process. More research will be required to determine potential barriers in externally advertised appointment processes and to develop concrete solutions.

This audit report makes 3 recommendations intended to address the lower success experienced by some employment equity groups in external advertised recruitment processes. The development and implementation of concrete corrective measures will require collaboration between multiple stakeholders including deputy heads, the PSC, other central agencies and employment equity groups.

The audit makes clear that despite efforts across departments and agencies to advance diversity, work remains to achieve inclusive hiring processes in the public service. The PSC will need to further support organizations by providing systems, tools and guidance for implementing a barrier-free appointment process. Most importantly, deputy heads are responsible for reviewing their staffing framework and practices to ensure barrier-free appointment processes for all employment equity groups, including visible minority sub-groups.

Source: https://www.canada.ca/en/public-service-commission/services/publications/audit-of-employment-equity-representation-in-recruitment.html#2_0

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Australian national anthem changes by one word to reflect ‘spirit of unity’ and indigenous population

2021/01/06 Leave a comment

Of note. Commentary that I have seen to date suggests not having much impact, with more critical voice included below:

The Australian national anthem has been changed to reflect the nation’s “spirit of unity” and its indigenous population, the country’s prime minister has said.

The one-word change to Advance Australia Fair, from “For we are young and free” to “For we are one and free” takes effect on Friday.

Speaking on New Year’s Eve, Scott Morrison called Australia the “most successful multicultural nation on Earth,” adding that “it is time to ensure this great unity is reflected more fully in our national anthem”.

“While Australia as a modern nation may be relatively young, our country’s story is ancient, as are the stories of the many First Nations peoples whose stewardship we rightly acknowledge and respect,” he said.

“In the spirit of unity, it is only right that we ensure our national anthem reflects this truth and shared appreciation.”

The move has been welcomed by the first indigenous Australian elected to the federal parliament’s lower house.

Ken Watt, Minister for Indigenous Australians, said in a statement that he had been asked about the change and supported it.

He called the one-word alteration “small in nature but significant in purpose”.

Mr Watt added: “It is an acknowledgement that Aboriginal and Torres Strait Islander cultures date back 65,000 years.”

The change is not without its critics, however.

New South Wales state Premier Gladys Berejiklian has expressed support for indigenous Australians who said the national anthem does not reflect them and their history.

University of New South Wales law professor Megan Davis, a Cobble Cobble woman from the Barrungam nation in southwest Queensland state, criticised the lack of consultation with indigenous people about the change.

“This is a disappointing way to end 2020 and start 2021. Everything about us, without us,” she wrote on social media.

Last month, Australia’s national rugby team, the Wallabies, became the first sporting team to sing the anthem in an indigenous language before their match against Argentina.

Advance Australia Fair was composed by Peter Dodds McCormick and first performed in 1878.

It was adopted as the national anthem in 1984.

Source: Australian national anthem changes by one word to reflect ‘spirit of unity’ and indigenous population

And a critical Indigenous voice,

Last night the Morrison government announced that they were changing the national anthem, to be more inclusive of Indigenous peoples and of migrants (the not white ones anyways), by changing a single word, ‘young’. It’s now ‘one’.

We are one and free.

We are One Nation.

Pauline must be stoked.

This, from the same political party who every Invasion Day assure us that Indigenous peoples aren’t interested in meaningless symbolic gestures like Australia no longer throwing a party on the anniversary of invasion, are now confident that Indigenous peoples will be so excited about this meaningless symbolic change that presumably we will no longer refuse to sing it at national sporting events.

Changing the anthem from ‘young’ to ‘one’ is not only problematic because it’s symbolic tokenism aimed at silencing dissent that completely misses the nature of the dissent in the first place, but it’s also problematic because it’s the same wrongly labelled ‘one’ as the one made famous by ‘One Nation’.

The original version of ‘we are one’ was a view of multiculturalism which tried to encourage white Australia away from its traditional view of a fair go meaning ‘if your skin ain’t fair, you gots to go’ and to accept instead the notion that we could be ‘one nation with many cultures’. This was quickly co-opted by racist ideologues who replaced that sentiment with the assimilationist idea that one nation meant ‘one culture with many races’ and that was quickly cemented into the national consciousness by Pauline Hanson who seized the moment and took the name for her political party ‘One Nation’.

Despite One Nation tainting the concept of ‘one nation,’ both meanings have persisted in Australia without much national discourse or reflection on which one we should have, but it’s been pretty clear from a Liberal Party standpoint since the days of John Howard that they aren’t huge fans of the multiculturalism actually meaning multiple cultures. They are generally more on the side of white/western supremacy, which many liberals have hinted at, and which Tony Abbott flat out stated on multiple occasions when he was PM.

Their views on Indigenous assimilation are much the same.

This can be seen by their political insistence that reconciliation can only be achieved by ‘closing the gap’ rather than by recognising Indigenous Rights as defined by the United Nations Declaration on the Rights of Indigenous Peoples.

Having an ambiguous working definition of multiculturalism began as a contest between the two, which the nation should have chosen between by now. Instead, both definitions have been left unchallenged to ensure that politicians can conveniently dog whistle to both sides whenever they talk about us being the ‘most successful multicultural country on Earth’.

This change plays right into that blurring of the lines between the two definitions.

We are one. And we are free. And from all the lands on earth we come.

You’d have thought they would have just straight up changed the anthem to ‘I am Australian’ by the Seekers, but I guess it has too much brand association with QANTAS these days, and because you don’t want to be seen as caving in to the politically correct demands of the slightly left of centrists who were presumably campaigning for this change.

Yesterday, on the last day of 2020, IndigenousX published a powerful piece from Gregory Phillips called ‘Can We Breathe?’ talking staunchly about truth telling, and about Indigenous empowerment.

Today, on the first day of 2021, we are talking about the anthem, or at least we are meant to be.

Instead of continuing to explain why the new anthem is just as shit as the old one though, I’m going to remind people of what some of our Indigenous Rights are:

Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 8.1: Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

That’s only four of them, there are 46. Read them. There will be a test.

This is the test, and Australia is failing at it.

These are what needs to be informing our discussions around change.

Australia has worked hard for decades now to poison the well of Indigenous Rights discourse by reframing any such discussion as ‘Indigenous people want special treatment and free handouts’.

We need to move beyond the fear of being shown in this light and embrace the reality that being the Indigenous peoples of these lands and waters is special, and it brings with it special rights and responsibilities.

This is not us wanting something for nothing. This is us demanding our rights, and we have already paid far more than we should ever have had to for them.

Source: We are One Nation?

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Order of Canada Appointments: 2013-20

2021/01/05 Leave a comment

With the second batch of 2020 appointments announced, I have updated my analysis of the appointments looking at diversity from the angle of women, visible minorities, Indigenous peoples, province, and area of activity.

While the percentage of women appointed in 2019 was lower than average, this rose to a more typical one-third of appointments in 2020. Representation of visible minorities was higher than previous years, representation of Indigenous peoples also rose from 2019 but remained lower than 2017 and 2018, but still higher than previous years.

There is a certain subjectivity with respect to area of activity. For example, activist, academic, public service or business and philanthropy. I have tried to be as consistent as possible.

The presentation below provides the details.

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