Time for action on Indigenous language protection

It has been almost two years since Prime Minister Justin Trudeau committed to enacting an Indigenous Languages Act, co-developed with Indigenous Peoples, to "preserve, protect and revitalize" Indigenous languages in Canada. Last spring, the Trudeau government promised to table legislation this fall, following a summer of consultations. It is said this act will recognize the use of Indigenous languages as a "fundamental right."

Little is publicly known about how the act will concretely guarantee such rights.

Some stakeholders are understandably concerned that the proposed legislation will be merely symbolic. We say "understandably," because Ottawa has a history of toothless language legislation — a history that seems doomed to repeat itself unless a new approach to language-rights protection is adopted.

Few know of Bill S-212, an act for the advancement of the Aboriginal languages of Canada and to recognize and respect Aboriginal languages rights, introduced in the Senate in 2015. In his introduction speech, Sen. Serge Joyal optimistically affirmed that Bill S-212 would re-establish Aboriginal peoples’ rights to their identity, including their languages.

Sen. Joyal was surely drawing upon his extensive leadership in protecting French (and English in Quebec), particularly his involvement in amending Part VII of the Official Languages Act (OLA) in 2005, by which Parliament intended to impose positive language obligations on the government. Indeed, Bill S-212 bears striking resemblance to Part VII of the OLA.

The OLA imposes a general duty on the federal government to take "positive measures" to enhance "the vitality of the English and French linguistic minority communities in Canada" by "supporting and assisting their development" and "fostering the full recognition and use of both English and French in Canadian society."

Sound familiar? Bill S-212 would enunciate the federal government’s commitment to take measures to implement a general commitment to "preserving, revitalizing and promoting" Indigenous languages by "protecting them and using them where appropriate."

While many were optimistic about the 2005 OLA amendments, the intended beneficiaries could not have more greatly misjudged their impact. In subsequent years, the OLA’s inherent limitations became clear.

In May, the Federal Court released its decision in Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development), a case regarding French-language services within the context of a multi-year, multimillion-dollar federal transfer agreement. The Federal Court was tasked with determining whether sufficient "positive measures" (Bill S-212 uses similar language) had been taken regarding the quality and availability of services in French.

The Federal Court confirmed what skeptics were afraid of: while the OLA requires the federal government to advance French and English as official languages, it does not establish any specific performance obligations, nor, for that matter, any precise rights. Instead, the OLA relies on Ottawa’s bureaucrats to draft regulations necessary to realize Parliament’s objectives.

No such regulations were ever passed, leaving Parliament’s commitment toward anglophone and francophone minority communities undefined, and those communities without any legal recourse. Bill S-212 resorts to the same approach.

Some foreshadowed the limitations of the OLA. In the early days, despite insistence to the contrary by Brian Mulroney’s Progressive Conservative Party, Liberal senators (such as Sen. Pierre De Bané) questioned whether the OLA would confer any concrete, positive obligations on the federal government, particularly given its lack of enforceability provisions.

Roughly 30 years later, and despite targeted amendments, the Federal Court — giving credence to these concerns — confirmed that the OLA is, indeed, a toothless tiger. For his part, Trudeau recently committed in Parliament to, yet again, modernizing the OLA. He even vowed to "get it right" this time.

Canada has a complicated history of legislating language rights, but our point is simple: mistakes must not be repeated. With its similarities to the current OLA, Bill S-212 is unlikely to "preserve, protect and revitalize" most Indigenous languages. But a new parliamentary session has begun and it’s not too late to circumnavigate known dangers.

Madelaine Mackenzie, Darius Bossé and Mélanie Power are lawyers at the Ottawa/Vancouver-based firm Power Law.