Backgrounder - Changes to the Indian Act Affecting Indian Residential Schools
The Government of Canada is considering ways to update the Indian Act by excising provisions relating to Indian residential schools, and specifically, by removing sections that allow for their establishment.
The Origins of Indian Residential Schools
The establishment of the Indian and Residential Schools began in the 19th century, based on the belief on the part of the government of the day that the best chance of success for the Aboriginal people was for them to abandon their traditional ways and adopt either the English or French language and Christian customs. The federal government built an educational system in which very young children were often forcibly removed from their families and homes, and taken to boarding schools where they were housed, fed and educated for life in mainstream society. In all, about 150,000 First Nations, Inuit and Métis children were removed from their communities and forced to attend the schools. All were deprived of the care and nurturing of their parents, grandparents and communities. First Nations, Inuit and Métis languages and cultural practices were prohibited in these schools.
Towards Reconciliation
On May 10, 2006, the Government of Canada announced the approval of a final Indian Residential Schools Settlement Agreement. The settlement provides for a Common Experience Payment, a lump sum payment available to former students who lived at one of the listed residential schools. The Settlement Agreement also includes an Independent Assessment Process which allows those former students who suffered sexual or serious physical abuses, or other abuses that caused serious psychological effects, to apply for compensation.
The Settlement Agreement also includes collective measures including a Truth and Reconciliation Commission, a Commemoration initiative, and funding for health support programs.
Indian and Northern Affairs Canada (INAC) is working with former students of Indian Residential Schools, Aboriginal organizations, church representatives, and the Courts, to oversee the timely and effective implementation of the Indian Residential Schools Settlement Agreement.
On June 11, 2008, Prime Minister Stephen Harper, on behalf of all Canadians, offered an historic formal apology to former students of Indian Residential Schools and sought forgiveness for the students' suffering and for the damaging impact the schools had on Aboriginal culture, heritage and language.
Update to the Indian Act
When the Indian Act was first enacted in 1876, it contained a number of strictures that would be considered archaic by today's standards, including clauses that allow the federal government to establish Indian residential schools. Even though we now know the damage that was caused to many Aboriginal people and communities as a result of residential schools, these clauses remain part of the laws of Canada.
The Government of Canada will work with Aboriginal groups and Parliamentarians to develop a proposal to update the Indian Act by removing provisions which give the Minister the authority to establish and operate Indian Residential Schools and allow for the forcible removal of children from their homes.
Currently, sections 114 to 122 of the Indian Act deal with “schools”. Section 119 in particular allows for the appointment of truant officers who may take a First Nations child into custody and “convey the child to school using as much force as the circumstances require.” This provision has not been in use for years.
In addition, there are some other antiquated provisions in this “schools” section of the Indian Act which have not been used for many years. The Government is considering the repeal of provisions that are unnecessary or irrelevant to the functioning of a modern education system.
INAC continues to fund the operation of schools and the education of children resident on reserve. In the vast majority of cases, it is now the First Nations themselves which operate schools on reserve. The federal government will ensure there is sufficient authority remaining in the Indian Act to enable INAC to continue in this role, and enough flexibility to deal with current issues as they arise.
In Budget 2010, the Government committed to “work with First Nation groups and other willing partners to develop options, including new legislation, to improve the governance framework and clarify accountability for First Nations elementary and secondary education.”
Going forward, the Government will work with willing partners to reform and strengthen education of First Nation children, and to support student success and provide greater hope and opportunity, because this is so vital to the future of First Nations communities and to Canada.
Sections 114 to 122 of the Indian Act
SCHOOLS
Agreements with provinces, etc.
114. (1) The Governor in Council may authorize the Minister, in accordance with this Act, to enter into agreements on behalf of Her Majesty for the education in accordance with this Act of Indian children, with
- (a) the government of a province;
- (b) the Commissioner of Yukon;
- (c) the Commissioner of the Northwest Territories;
- (c.1) the Commissioner of Nunavut;
- (d) a public or separate school board; and
- (e) a religious or charitable organization.
144. (2) The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian children.
R.S., 1985, c. I-5, s. 114; 1993, c. 28, s. 78; 2002, c. 7, s. 184.
115. The Minister may
- provide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with schools;
- provide for the transportation of children to and from school;
- enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations; and
- apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school.
R.S., c. I-6, s. 115.
116. (1) Subject to section 117, every Indian child who has attained the age of seven years shall attend school.
116. (2) The Minister may
- require an Indian who has attained the age of six years to attend school;
- require an Indian who becomes sixteen years of age during the school term to continue to attend school until the end of that term; and
- require an Indian who becomes sixteen years of age to attend school for such further period as the Minister considers advisable, but no Indian shall be required to attend school after he becomes eighteen years of age.
R.S., c. I-6, s. 116.
117. An Indian child is not required to attend school if the child
- is, by reason of sickness or other unavoidable cause that is reported promptly to the principal, unable to attend school;
- is, with the permission in writing of the superintendent, absent from school for a period not exceeding six weeks in each term for the purpose of assisting in husbandry or urgent and necessary household duties;
- is under efficient instruction at home or elsewhere, within one year after the written approval by the Minister of such instruction; or
- is unable to attend school because there is insufficient accommodation in the school that the child is entitled or directed to attend.
R.S., c. I-6, s. 117.
118. Every Indian child who is required to attend school shall attend such school as the Minister may designate, but no child whose parent is a Protestant shall be assigned to a school conducted under Roman Catholic auspices and no child whose parent is a Roman Catholic shall be assigned to a school conducted under Protestant auspices, except by written direction of the parent.
R.S., c. I-6, s. 118.
119. (1) The Minister may appoint persons, to be called truant officers, to enforce the attendance of Indian children at school, and for that purpose a truant officer has the powers of a peace officer.
119. (2) Without restricting the generality of subsection (1), a truant officer may, subject to subsection (2.1),
- enter any place where he believes, on reasonable grounds, that there are Indian children who are between the ages of seven and sixteen years, or who are required by the Minister to attend school;
- investigate any case of truancy; and
- serve written notice on the parent, guardian or other person having the care or legal custody of a child to cause the child to attend school regularly thereafter.
Warrant required to enter dwelling-house
119. (2.1) Where any place referred to in paragraph (2)(a) is a dwelling-house, a truant officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (2.2).
119. (2.2) Where on ex parte application a justice of the peace is satisfied by information on oath
- that the conditions for entry described in paragraph (2)(a) exist in relation to a dwelling-house,
- that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and
- that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused,
the justice of the peace may issue a warrant under his hand authorizing the truant officer named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.
119. (2.3) In executing a warrant issued under subsection (2.2), the truant officer named therein shall not use force unless he is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
119. (3) Where a notice has been served in accordance with paragraph (2)(c) with respect to a child who is required by this Act to attend school and the child does not within three days after the service of notice attend school and continue to attend school regularly thereafter, the person on whom the notice was served is guilty of an offence and liable on summary conviction to a fine not exceeding five dollars or to imprisonment for a term not exceeding ten days or to both.
119.(4) Where a person has been served with a notice in accordance with paragraph (2)(c), it is not necessary within a period of twelve months thereafter to serve that person with any other notice in respect of further non-compliance with this Act, and whenever that person within the period of twelve months fails to cause the child with respect to whom the notice was served or any other child of whom he has charge or control to attend school and continue in regular attendance as required by this Act, that person is guilty of an offence and liable to the punishment imposed by subsection (3) as if he had been served with the notice.
119.(5) A child who is habitually late for school shall be deemed to be absent from school.
119.(6) A truant officer may take into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require.
R.S., 1985, c. I-5, s. 119; R.S., 1985, c. 32 (1st Supp.), s. 21.
120. (1) Where the majority of the members of a band belong to one religious denomination, the school established on the reserve that has been set apart for the use and benefit of that band shall be taught by a teacher of that denomination.
120. (2) Where the majority of the members of a band are not members of the same religious denomination and the band by a majority vote of those electors of the band who were present at a meeting called for the purpose requests that day schools on the reserve should be taught by a teacher belonging to a particular religious denomination, the school on that reserve shall be taught by a teacher of that denomination.
R.S., c. I-6, s. 121.
Minority religious denominations
121. A Protestant or Roman Catholic minority of any band may, with the approval of and under regulations to be made by the Minister, have a separate day school or day school classroom established on the reserve unless, in the opinion of the Governor in Council, the number of children of school age does not so warrant.
R.S., c. I-6, s. 122.
122. In sections 114 to 121,
“child”
« enfant »
“child” means an Indian who has attained the age of six years but has not attained the age of sixteen years, and a person who is required by the Minister to attend school;
“school”
« école »
“school” includes a day school, technical school, high school and residential school;
“truant officer”
« agent de surveillance »
“truant officer” includes
- a member of the Royal Canadian Mounted Police,
- a special constable appointed for police duty on a reserve, and
- a school teacher and a chief of the band, when authorized by the superintendent.
R.S., c. I-6, s. 123.
- Indian Residential Schools
- Common Experience Payments
- Independent Assessment Process
- Indian Residential Schools Settlement Agreement
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