Our Languages are Sacred: Finding Constitutional Space for Aboriginal Language Rights
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Date
2018
Authors
Fontaine, Lorena Sekwan
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Abstract
Abstract
This doctoral thesis argues that Aboriginal languages have a special constitutional status under section 35 (1) of the Constitution Act, 1982. It also sets out the broad lines of how constitutional recognition could be achieved.
Using the framework established by the Van der Peet case (that in order for an Aboriginal activity to be recognized as an Aboriginal right it must be demonstrated as a practice, custom, and tradition at the time of contact with a “modest” ability to evolve”) this thesis argues that special constitutional status must be obtained due to four reasons.
First, Aboriginal customary law forms the basis for Aboriginal language rights and a duty to transmit language to future generations. Using inter-customary and historical language practices between European and Aboriginal peoples this thesis also suggest that linguistic exchange created a unique body of law and formed the basis for relationships between diverse cultures and national groups.
Secondly, this thesis traces the disruption Canada’s assimilation policies have had on Aboriginal languages, particular in educational policy and residential schools. It is argued this was a violation of Canada’s common law as inter-customary law and Aboriginal language rights was not extinguished or surrendered by law or treaty. This forms a large part of what the Truth and Reconciliation Commission of Canada has called Canada’s “cultural genocide” – a practice successive federal governments have admitted as wrong and now commit to rectifying in policy and practice.
Thirdly, Aboriginal languages as ongoing parts of Aboriginal customs, practices, and traditions today, this thesis cites Aboriginal people’s advocacy for language preservation and promotion through law; ongoing attempts to express constitutional recognition regionally; the unwritten principles of the Canada’s constitution; and government recognition of the centrality of Aboriginal language through constitutional negotiations, national studies and Royal Commissions.
Fourthly, it is asserted that International law is a crucial arena in which Aboriginal language rights can, has, and should be asserted.
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Keywords
Aboriginal Rights, Indigenous Languages, Indigenous Language Rights