I. Introduction

There are between 53 and 70 Indigenous languages in Canada. It is undeniable that these languages contribute to the richness of the linguistic heritage of Canada.[i] Unfortunately, a majority of them are now in a state of decline or endangerment (Report of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength, at pp. 564-569). In 1991, a study showed that in 69 % of First Nations communities, Indigenous languages were “declining”, “endangered”, or in a “critical” state. Indigenous languages were considered “enduring” in 18 % of First Nations communities, and “flourishing” in only 12 % of these communities. The only “viable” Indigenous languages were Cree, Ojibwee, and Inuktitut (Task Force on Aboriginal Languages and Cultures, Towards a New Beginning: A Foundational Report for a Strategy to Revitalize First Nation, Inuit and Métis Languages and Cultures, at pp. 34-35; Gabriel Poliquin, “La protection d’une vitalité fragile : Les droits linguistiques autochtones en vertu de l’article 35” (2013) 58:3 McGill LJ 573, at p. 576; Naiomi Metallic, “Becoming a Language Warrior” in Marie Battiste, ed, Living Treaties: Narrating Mi’kmaw Treaty Relations (Sydney, NS: Cape Breton University Press, 2016) 241, at pp. 244-245; Naiomi Metallic, “Les droits linguistiques des peuples autochtones” in Michel Bastarache & Michel Doucet, eds, Les droits linguistiques au Canada, 3rd ed (Cowansville, QC: Yvon Blais, 2013) 891, at p. 900).

As explained by Naiomi Metallic, “the decline of Aboriginal languages was largely caused by assimilation policies pursued by the Canadian government since Confederation, including, most notably, Aboriginal residential and day schools that sought to ‘take the Indian out of the child’ and forbade children from speaking their Aboriginal Languages” (“Becoming a Language Warrior”, at p. 245). Because of these deliberate attempts in the past to undermine Indigenous languages, it is often thought that Canada is now obligated – at least from a moral standpoint – to provide the resources that are required to sustain a long-term strategy to protect Indigenous languages (Task Force on Aboriginal Languages and Cultures, at p. 28). In this spirit, the Canadian language rights regime was expanded in 2019 with the adoption of the Indigenous Languages Act, SC 2019, c 23. However, this initiative does not immunize the Government of Canada from criticism, as the Indigenous Languages Act fails, i.a., to recognise Official Language status to Indigenous languages. This criticism is exacerbated by the recent release of the Government of Canada’s vision for Official Languages reform, which aims at achieving substantive equality between English and French. As explained by Stéphanie Chouinard, “[a]s Canada comes to terms with its colonial legacy, the oppression (to the point of widespread endangerment and, in some cases, extinction) of Indigenous languages compared to the treatment and protections afforded to French and English, at least since the 1960s, has become a symbol of ‘white settler colonialism’” (“Language Rights and the Charter” in Emmett Macfarlane & Kate Puddister, eds, Constitutional Crossroads: Reflections on Charter Rights, Reconciliation, and Change (Vancouver: University of British Columbia Press, 2022) 293, at p. 303, referring to Eve Haque & Donna Patrick, “Indigenous Languages and the Racial Hierarchisation of Language Policy in Canada” (2015) 36:1 J Multilingual & Multicultural Development 27).

In this paper, I provide, first, a short overview of the legal status of the Indigenous languages in Canada.[ii] I then suggest, secondly, that the endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, GA Res, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007) (the “UNDRIP”) and the adoption of statutes aimed at implementing the UNDRIP in Canada represent a seed of hope for the future.

II. The legal status of the Indigenous languages in Canada

(a) The Constitution

The Constitution Act, 1867 and the 1982 Canadian Charter of Rights and Freedoms are both silent as to the existence of Indigenous language rights (Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 902, 908). The only reference to the existence of Indigenous peoples in the Constitution Act, 1867 is contained in section 91(24), which confers exclusive legislative authority to the federal order of government in relation to “Indians, and Lands reserved for the Indians”. For its part, the Canadian Charter of Rights and Freedoms recognises only English and French as the Official Languages of Canada, and guarantees rights – such as the right to access minority-language education – to these two linguistic communities only (sections 16-20, 23).

However, section 22 of the Canadian Charter of Rights and Freedoms states that “[n]othing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French”. There are scholars who suggest “that Indigenous peoples in Canada [are] the groups most likely to have claims to ‘customary languages rights’” within the meaning of section 22 (Chouinard, at p. 304, referring to Walter S. Tarnopolsky, “The Equality Rights” in Walter S. Tarnopolsky & Gérard-A. Beaudoin, eds, The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) 441). In a similar way, section 25 states that “[t]he 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”. In addition, the Supreme Court of Canada recognises that the “right to express ourselves in any language we choose, including, of course, any indigenous language” is an intrinsic part of the guarantee of freedom of expression in section 2(b) (Brian Slattery, “Aboriginal Language Rights” in David Schneiderman, ed, Language and the State: The Law and Politics of Identity (Cowansville, QC: Yvon Blais, 1991) 369, at p. 369, referring to Ford v. Quebec (Attorney General), [1988] 2 SCR 712; Devine v. Quebec (Attorney General), [1988] 2 SCR 790; Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 909-910; Chouinard, at p. 296). Furthermore, it is arguable – though this is not firmly established – that language is a prohibited ground of discrimination within the meaning of section 15 (Poliquin, at p. 581; Metallic, “Les droits linguistiques des peuples autochtones”, at p. 910).

Importantly, it is also arguable that the “aboriginal rights” recognised and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages (Poliquin; Metallic, “Becoming a Language Warrior”, at p. 250; Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 903-904, 915-916; Chouinard, at pp. 303-304). Section 35(1) of the Constitution Act, 1982 states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. In R. v. Van der Peet, the Supreme Court of Canada established that “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” ([1996] 2 SCR 507, at p. 549). In other words, “aboriginal rights” include rights related to “cultural practices” (Poliquin, at p. 579). In my view, the use of language is clearly a “cultural practice” (Poliquin, at p. 579; Chouinard, at p. 304). Even though the Supreme Court of Canada has yet to rule on the issue of whether “aboriginal rights” include rights related to Indigenous languages, it is useful to point out to the fact that its jurisprudence otherwise already recognises the cultural importance of language (Re Manitoba Language Rights, [1985] 1 SCR 721, at p. 744 (“[t]he importance of language rights is grounded in the essential role that language plays in human existence, development and dignity”); Ford v. Quebec (Attorney General), [1988] 2 SCR 712, at pp. 748-749 (“[l]anguage […] is […] a means by which a people may express its cultural identity”); Mahe v. Alberta, [1990] 1 SCR 342, at p. 362 (“[l]anguage […] is part and parcel of the identity and culture of the people speaking it”); Poliquin, at pp. 579-580; Metallic, “Les droits linguistiques des peuples autochtones”, at p. 915; Chouinard, at p. 304).

(b) Canada

Canada’s Official Languages Act, RSC 1985, c 31 (4th Supp) is silent as to the existence of Indigenous language rights (Metallic, “Becoming a Language Warrior”, at p. 247; Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 919-920). It recognises only English and French as the Official Languages of Canada, and ensures “equality of status and equal rights and privileges” to these two languages only (section 2). However, section 83(1) states that “[n]othing in this Act abrogates or derogates from any legal or customary right acquired or enjoyed either before or after the coming into force of this Act with respect to any language that is not English or French”. In a similar way, section 83(2) states that “[n]othing in this Act shall be interpreted in a manner that is inconsistent with the preservation and enhancement of languages other than English or French”.

The Official Languages Act was adopted in 1969. Its main provisions were entrenched in the Constitution with the adoption of the Canadian Charter of Rights and Freedoms in 1982 (François Larocque, “The Modernization of the Official Languages Act” in Lianne Pelletier, ed, On the Road to Modernization: Proceedings of the Symposium on the 50^th Anniversary of the Official Languages Act (Sudbury, ON: Institut franco-ontarien, 2021) 6, at p. 10). In 2019, the fiftieth anniversary of the Official Languages Act “was accompanied by renewed pressure for a revision of the act, which hasn’t been thoroughly updated since 1988” (Chouinard, at p. 300). In 2021, the Government of Canada released its vision for Official Languages reform, which aims at achieving substantive equality between English and French. As mentioned above, this reform fails to recognise Official Language status to Indigenous languages. However, it recognises the importance of reclaiming, revitalizing, and strengthening Indigenous languages while strengthening the status and use of English and French (Bill C-13, An Act for the Substantive Equality of Canada’s Official Languages, 1st Sess, 44th Parl, 2021-2022-2023).

(c) The territories

As explained by Naiomi Metallic, “[s]ome of the stronger efforts to protect and promote Aboriginal languages are undertaken by the northern territories, where there is a high concentration of Aboriginal peoples” (Metallic, “Becoming a Language Warrior”, at p. 247). While Yukon’s Languages Act, RSY 2002, c 133 recognises only English and French as Official Languages (section 1(1)), it “recognizes the significance of aboriginal languages in the Yukon”, and commits the government “to take appropriate measures to preserve, develop, and enhance those languages in the Yukon” (section 1(3)).

For its part, the Northwest Territories’ Official Languages Act, RSNWT 1988, c O-1 recognises eleven Official Languages, including English, French, and nine Indigenous languages (section 4). It also recognises “equality of status and equal rights and privileges” as to the use of these Official Languages in government institutions (section 5).

Finally, Nunavut’s Official Languages Act, SNu 2008, c 10 recognises English, French, and the Inuit Language as the Official Languages of Nunavut (section 3(1)). It also recognises “equality of status and equal rights and privileges” as to the use of these Official Languages in territorial institutions (section 3(2)). The Inuit Language Protection Act, SNu 2008, c 17 also affirms the Inuit Language as a language of education, as a language of work in territorial institutions, and as a language used in services and communications with the public throughout all sectors of Nunavut society (Preamble).

(d) The provinces

The efforts of two provinces are worth mentioning in relation to the recognition of Indigenous languages (Metallic, “Becoming a Language Warrior”, at pp. 248-249). Manitoba’s Aboriginal Languages Recognition Act, CCSM, c A1.5 recognises that seven Indigenous languages are used in Manitoba (section 1). While it does not recognise Official Language status to these Indigenous languages, it affirms that “the government has a role to play in recognizing and promoting the preservation and use of Aboriginal languages” (Preamble).

British Columbia’s First Peoples’ Heritage, Language and Culture Act, RSBC 1996, c 147 aims at protecting, revitalizing, and enhancing Indigenous heritage, language, culture and arts (Preamble). It creates the First Peoples’ Heritage, Language and Culture Council (sections 3-5) to finance projects that promote Indigenous languages and culture (section 6(1)). In 2019, British Columbia also adopted the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44. This brings me to the UNDRIP and its Canadian offshoots.

III. The future: The UNDRIP and its Canadian offshoots

The UNDRIP was adopted by the General Assembly of the United Nations in 2007. At the time, Canada voted against the resolution of the General Assembly (together with Australia, New Zealand, and the United States). The UNDRIP affirms and sets out collective as well as individual rights for the survival, dignity and well-being of Indigenous peoples. These rights include rights related to Indigenous languages. Article 13(1), for instance, recognises the right of Indigenous peoples to revitalize, use, develop and transmit to future generations their own languages, oral traditions, writing systems and literatures, and to designate and retain their own names for communities, places and persons. Article 13(2) adds that “States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means”. Article 14(1) recognises the right of Indigenous peoples to establish and control their own educational systems and institutions providing education in their own languages. Article 16(1) also recognises the right of Indigenous peoples to establish their own media in their own languages.

In 2010, Canada reversed its initial position and endorsed the UNDRIP. In 2016, Canada announced that it was now a full supporter, without qualification, of the UNDRIP, and committed to its implementation in accordance with the Canadian Constitution. The Government of Canada is now working in consultation and cooperation with the Indigenous peoples to implement the UNDRIP. I should add that the implementation of the UNDRIP responds to the Truth and Reconciliation Commission’s Call to Action 43, and to the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

(a) The Indigenous Languages Act

Canada’s Indigenous Languages Act contributes to the implementation of the UNDRIP as it relates to Indigenous languages (section 5(g)). It also responds to the Truth and Reconciliation Commission’s Calls to Action 13 to 15 (section 5(f)). It was adopted in 2019, which was the International Year of Indigenous Languages. The Act recognises that “a history of discriminatory government policies and practices […] were detrimental to Indigenous languages and contributed significantly to the erosion of those languages”, and that “there is an urgent need to support the efforts of Indigenous peoples to reclaim, revitalize, maintain and strengthen them” (Preamble). Importantly, the Act recognises that the “aboriginal rights” recognised and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages (section 6). The Act also establishes the Office of the Commissioner of Indigenous Languages (section 12). Its mandate is to support the efforts of Indigenous peoples to reclaim, revitalize, maintain and strengthen their languages; to provide culturally appropriate dispute resolution services and review complaints; to promote public awareness of the richness and diversity of Indigenous peoples; to support research, innovation and the use of new technologies; and to provide annual reports on the use and vitality of Indigenous languages in Canada and the adequacy of funding provided by the Government of Canada for initiatives related to Indigenous languages (sections 23, 43).

(b) The UNDRIP Act

Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the “UNDRIP Act”) provides a framework for the Government of Canada’s implementation of the UNDRIP (section 4(b)). As mentioned above, the implementation of the UNDRIP responds to the Truth and Reconciliation Commission’s Call to Action 43, and to the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The UNDRIP Act was adopted in 2021. It affirms the UNDRIP “as a universal international human rights instrument with application in Canadian law” (section 4(a)). It also requires the Government of Canada, in consultation and cooperation with the Indigenous peoples, to “take all measures necessary to ensure that the laws of Canada are consistent with the [UNDRIP]” (section 5), to “prepare and implement an action plan to achieve the objectives of the [UNDRIP]” (section 6), and to prepare annual reports on progress and submit them to Parliament (section 7).

IV. Conclusion

What future for the Indigenous languages in Canada?

First, as mentioned above, the endorsement of the UNDRIP and the adoption of statutes aimed at implementing the UNDRIP in Canada represent a seed of hope for the future. The UNDRIP Act requires the Government of Canada, in consultation and cooperation with the Indigenous peoples, to prepare and implement an action plan to achieve the objectives of the UNDRIP (section 6). The Action Plan 2023-2028 released in June 2023 states, i.a., that the Government of Canada, in consultation and cooperation with the Indigenous peoples, will “review and consider proposed amendments to strengthen the Indigenous Languages Act” (action 91). The Government of Canada will also “[c]ontinue establishing measures to facilitate the provision of adequate, sustainable and long-term funding for the reclamation, revitalization, maintenance and strengthening of Indigenous languages” (action 92). As the majority of the Indigenous languages in Canada are now in a state of decline or endangerment, these actions seem essential indeed.

Secondly, it is arguable, as mentioned above, that the “aboriginal rights” recognised and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages (Poliquin; Metallic, “Becoming a Language Warrior”, at p. 250; Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 903-904, 915-916; Chouinard, at pp. 303-304). This is now recognised by the Indigenous Languages Act (section 6). For some scholars, it is also arguable that these constitutional rights related to Indigenous languages are correlative to positive obligations on the part of the State, including an obligation to provide public funding for primary and secondary education in those languages, “where the number of children … warrants” (Chouinard, at p. 304, citing section 23 of the Canadian Charter of Rights and Freedoms; Poliquin; Metallic, “Becoming a Language Warrior”, at p. 250; Metallic, “Les droits linguistiques des peuples autochtones”, at pp. 916-917). If this were true, “we could foresee a form of convergence between official-language and Indigenous-language education rights emerge, which would most likely have the benefit of aligning with the broad aims stated in the Indigenous Languages Act” (Chouinard, at p. 304). For some scholars, it is also arguable that these constitutional rights related to Indigenous languages – together with sections 22 and 25 of the Canadian Charter of Rights and Freedoms – may serve as a ground for recognising Official Language status to some Indigenous languages (Chouinard, at p. 304; Slattery (tentatively arguing that aboriginal languages are in some sense official languages of Canada)). In Stéphanie Chouinard’s words, “[w]hether this legal hypothesis will effectively be tested before the courts in the future remains to be seen” (at p. 305).

Étienne Cossette-Lefebvre[iii]
SJD candidate & LLM, Faculty of Law, University of Toronto and BCL/LLB (Honours), Faculty of Law, McGill University

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[i] See the Preamble of the Indigenous Languages Act, SC 2019, c 23.

[ii] I should add that this short overview of the legal status of the Indigenous languages in Canada is provided without any pretense of exhaustivity.

[iii] Étienne is a Pierre Elliott Trudeau Foundation Scholar (2021-2024) and a Joseph-Armand Bombardier CGS Doctoral Scholar in Honour of Nelson Mandela (2021-2024). During the 2020-2021 academic year, he was Assistant Director of the Paul-André Crépeau Centre for Private and Comparative Law. From 2015 to 2018, he clerked at the Court of Appeal of Québec. In 2018-2019, he clerked for Justice Russell Brown at the Supreme Court of Canada. He wishes to thank Eva Pons for her invitation to submit this paper to the Journal of Language and Law. He also wishes to thank the Pierre Elliott Trudeau Foundation and its staff, as this paper is the fruit of encounters made during the 2023 Institute of Engaged Leadership in Spain. He is especially indebted to Stéphanie Chouinard and François Larocque for their precious help in the preparation of this paper.