Separate Journeys, Similar Path: Truth and Reconciliation in Canada and South Africa

Notes for an address by
The Honourable Jody Wilson-Raybould, PC, QC, MP
Minister of Justice and Attorney General of Canada

To the
University of Cape Town Law School
Wilfred and Jules Kramer Law Building
Cape Town, South Africa: March 30, 2017

Check against delivery

Gilakas’la. Good evening, ladies and gentlemen. Thank you so much for that very generous introduction.

And thank you for inviting me to speak this evening at the University of Cape Town Faculty of Law. It is a great pleasure to be here and I thank all of you for coming.

I am very pleased to bring you greetings on behalf of the Right Honourable Justin Trudeau, Prime Minister of Canada.

Canada and South Africa share a long-standing and broad relationship, anchored in shared values, shared histories, and strong people-to-people ties. In particular, former Prime Minister Brian Mulroney’s contribution to the liberation movement and his steadfast support for the release of Nelson Mandela is well known and I personally would like to recognize and hold up your government for awarding him the Supreme Companion of O.R. Tambo.

I have been touched by the esteem with which Canada is held in South Africa for the small role we played in promoting the establishment of a multi-ethnic, multi-racial, democratic society in South Africa.

As Canadians, we shall not forget the times that Nelson Mandela addressed our Parliament. He did so in 1990, as a freedom fighter denied citizenship in his own country.

When he visited some eight years later in 1998, President Mandela became the first foreign leader to be awarded the Order of Canada – our highest honour – and then, in 2001, he became the first living person to be awarded honourary Canadian citizenship.

Today, globally, the message of freedom and hope and respect for diversity that Madiba spread wherever he went resonates as strongly and as powerfully as it ever did – and guides us all as we look to create a fairer and more just society.

As our Prime Minister often remarks, Canada is stronger not in spite of our differences, but because of them. That capacity to celebrate the rich composition of our people will be at the heart of the success of our democracy. I hope that it is a message that we can humbly share with the world.

In the year of Canada’s 150th birthday – the anniversary of our founding as a country – I would like to share with you some reflections about our work of reconciliation – our work of transformation – with Canada’s Indigenous peoples – the First Nations, Inuit, and Métis peoples – work that is vital not just for the well-being of Indigenous peoples but for our country’s future.

But I must be up front to you – and tell you that for many Indigenous peoples, celebrating our country’s 150 birthday has its challenges. It is hard to celebrate 150 years of colonialism. So for many Indigenous people it is not so much about celebrating the past, but rather celebrating a new optimism about the future within a more inclusive and just Canada – and about making the next 150 years better for all.

To which I would add, an optimism shared by most Canadians, not just for Indigenous peoples, but for all peoples, regardless of race, religion, sexual orientation, or gender.

But first, as is the custom in my culture, I must introduce myself properly and say something about my own journey here today.

My traditional name is Puglaas.

My Nation is the Kwakwaka’wakw of the Kwak’wala-speaking peoples of northern Vancouver Island, in British Columbia on the west coast of Canada. And within my Nation I come from the Musgamagw Tsawataineuk and Laich-Kwil-Tach tribes. I am from the Eagle clan.

I come from a matrilineal society where we, like many of the tribes here, have hereditary Chiefs. Being matrilineal means that descent is traced through the mother and our maternal ancestors. Power and inheritance flows through the mother’s line.

My father is the hereditary Chief of our Clan. His name is Hemas Kla-Lee-Lee-Kla, which means “number one amongst the Eagles, the Chief that is always there to help.” He was given that name in a potlatch, which is our traditional institution of government. We still practise our potlatch – though for some generations Canada’s laws forbade us to do so. It is where our names and our lands are passed down or given from generation to generation. It is where laws are made; disputes settled; people are married; where possessions are redistributed; and so forth.

My grandmother’s name was Pugladee, the highest-ranking name in our clan. Her name means “a good host” – a name that was given to my older sister, Kory, the same time I was given my name. My name, Puglaas, means “a woman born to noble people.” The names were given in a naming potlatch when I was five and my sister six.

My grandmother raised me to know who I am, where I come from, and to recognize the rights and responsibilities that our people have in our country. Both my grandmother and my father pursued justice and equality for Indigenous peoples, recognition of their rights in our laws and Constitution, and full inclusion of our peoples within Canada.

I followed in their footsteps. After leaving law school, the first job I took was as a Crown Prosecutor in Vancouver’s notorious Downtown Eastside. Far too frequently I found myself prosecuting young Indigenous men and women whom I often felt were a product of a system that had failed them.

After my time as a Crown Attorney, I spent much of my adult life in various roles as an elected Indigenous leader. Most recently, I was the elected Regional Chief representing British Columbia at the Assembly of First Nations – an organization representing the nearly one million Indigenous people across Canada known as “First Nations.”

In my work as an Indigenous leader, I had seen how slow and frustrating the pace of change and reconciliation has been.

Making the jump from being an Indigenous leader to Canadian politics was not an easy one for me, or a decision taken lightly.

Given my upbringing and experience, I cannot claim to have had a long-standing ambition to be a Member of Parliament, let alone a Minister of the Crown. However, during my time as Regional Chief, I came to a greater appreciation that Indigenous peoples could not rebuild their nations and move beyond their colonial past without willing partners in government.

As is always the case when moving from patterns of injustice to justice – creativity, change, and courage are required of everyone. New approaches to reconciliation were required to pursue the transformation that is required in Canada’s relationship with Indigenous peoples.

I met our now Prime Minister, the Right Honourable Justin Trudeau, for the first time about four years ago when he attended a meeting of the Assembly of First Nations.

We talked about the future of Canada – our visions. About making Canada even better and, in particular, his convictions with respect to Indigenous peoples.

I came to see political participation as a chance to be part of a government whose leader has made a solemn commitment to fundamental change with a vision for true reconciliation with Indigenous peoples.

Having been appointed Minister of Justice and Attorney General of Canada, I am responsible for the very laws and policies that so many of us had worked so hard to change – laws and policies which remain on the books and have been the tools of colonization.

I see my appointment as a reflection of how far our country has come. Not so long ago, Indigenous women like me would not have been allowed to vote, let alone run for office, or practise law. Today, an Indigenous woman is the chief law officer of the Crown.

My upbringing, my education, and my professional and personal experiences have all shaped my worldview and strengthened my determination to achieve reconciliation between Indigenous peoples and all Canadians as well as between Indigenous peoples and the Government of Canada.

And now, as a Minister of the Crown, and in particular as Minister of Justice and Attorney General of Canada, I find myself in a unique position to help to further those efforts. I hope to fulfil the great sense of responsibility that accompanies this calling. Which brings me to why I am here in South Africa.

Your path toward reconciliation and transformation offers many important insights from which Canada can learn in reviewing its own laws and policies to do right by Indigenous Peoples.

Both of our countries have pursued reconciliation to right the wrongs of the past. Both established Truth and Reconciliation Commissions to discover the truth about our respective pasts and to record that truth so we do not forget.

Of course there are some significant differences in our realities and the scale of the challenges that we face. In Canada, the goal of reconciliation is to empower Indigenous peoples, who make up approximately five per cent of the total population. Your challenge has been of a different order.

And while there are parallels in our countries’ histories with respect to reconciliation, the experience of peoples and societies is unique to them – and acknowledging and respecting those realities requires listening and learning from the voices and perspectives of those who experienced them.

That said, there is tremendous value and importance in the sharing of these experiences, as the more humanity comes to understand oppression, racism, and how peoples have overcome, the more we can build a future where the values of equality, diversity and inclusion reign and where freedom rules.

In the days that I have been here, I have already learned much about your country’s recent history and your ongoing efforts to heal the wounds inflicted by apartheid. I have come to greatly admire the strength, courage, and resilience that individuals and communities are showing as part of the path of reconciliation. I am grateful for the honesty and openness I have experienced in my meetings here.

Today, both our countries share common values for a more inclusive and just society – reflected in your seven constitutional pillars of democracy, equality, reconciliation, diversity, responsibility, respect and freedom.

This, of course, was not always the case. As Archbishop Tutu acknowledged some 20 years ago during a visit to Canada:

“The struggles of native people in Canada have many parallels with those of black South Africans’ fight against apartheid. They have been treated less than justly. They have the right to be human and Indian…their culture must be recognized as having integrity and must not be subverted.”

Both countries now recognize that addressing this history is not a choice, but a fundamental necessity that is required for the future well-being of society and the population as a whole. To ensure the important words of freedom and hope are not empty or hollow, and where we breathe life into our respective Constitutions with conviction and goodness through our actions and a lot of hard work.

The fact that Canada’s Indigenous peoples were left out of our constitutional framework in 1867 has had far reaching implications. Government policy towards Canada’s first peoples became one of denial and assimilation and not recognition and partnership. This approach was fuelled by racist ideas and assumptions regarding Indigenous peoples.

The most insidious example of this was the Indian Act. In the early years of Canada’s creation, the Parliament of Canada enacted the Indian Act, as the primary legislative tool used to propagate the policy of denial and assimilation. The Indian Act was – and continues to be – one of the central legal tools of colonization of Indigenous peoples in Canada. It has had a central role in breaking down Indigenous systems of governance, moving people off their ancestral lands, and interfering with family and kinship systems.

Rather than being citizens or members of a Nation or Tribe of Indians recognized in the early treaty relationships that were established under the British Crown, under the Indian Act, legally defined Indians were moved onto small reserves, made wards of the state, with the government being their trustee.

Indians were considered legally incompetent unless they enfranchised to become full citizens of Canada. And if they chose to enfranchise, they were no longer recognized as Indigenous and lost their political voice within their community, and abandoned access to lands in their communities.

The Indian Act also created the infamous residential schools, which separated more than 150,000 children from their families and forbade them from speaking their languages or following their cultural practices. As one senior Crown official described it, the policy was designed to “Kill the Indian in the Child.” Thousands suffered unimaginable physical, emotional and sexual abuse, and many actually died, in the schools. The trauma caused by residential schools continues to echo through Indigenous communities, particularly among women and girls.

Ironically, even though the policy objective of the Indian Act was to assimilate Indigenous peoples, it also discouraged them from participating in Canadian society. It is not an over-exaggeration to say that it is one of the most sinister tools ever used to subjugate a people.

The Indian Act continues to exist today. This fact is troubling and telling. Canadians know that the Indian Act is wrong, harmful, and archaic – and cannot shape our future. But it has become so entrenched in the fabric of relations between Canada and Indigenous peoples that it is sometimes hard to see what lies beyond it. But we have to do so and do so together.

We know that reconciliation requires getting rid of the Indian Act and building proper relations based on recognition and respect, where Indigenous peoples are self-governing and self-determining – but we have struggled as a country to get to that place.

Thankfully, our world has changed and continues to change. The signs of change point toward recognition that Indigenous peoples in Canada are distinct groups with inherent rights that must to be protected and realized. Our Prime Minister has said that no relationship is more important to him than the one with Indigenous peoples.

In Canada, our modern legal system is underpinned by the recognition of fundamental human rights in our Canadian Charter of Rights and Freedoms and Indigenous rights in section 35 of our Constitution.

Like your Constitution’s Bill of Rights, our constitutional protection of rights is a recent commitment to a more just future. Both affirm a shift from a legal order based on authority to one based on the recognition of rights. It is a shift from a “culture of authority” to a “culture of justification,” to quote from Etienne Mureinik, whose work on your then-new Constitution and Bill of Rights continues to be cited worldwide today.

A recognition of rights approach affirms the authority of rights and the burden of justification on all government action.

In this important way, including Indigenous rights in our Constitution amounted to a promise to Indigenous peoples that their presence in Canada and their rights would no longer be denied, that assimilation and marginalization were colonial relics of the past, and that Canadians were ready to work together with them to build a better Canada.

Meeting this promise has not come easily and change did not happen overnight. Change has been slow – far too slow – and there is still much more work to be done. Changes to a Constitution alone do not change minds, hearts, and actions. Changes to a Constitution alone do not lift individuals or communities out of poverty, return land that was unlawfully taken, or re-invigorate cultures and traditions that have been suppressed.

What the changes to the Canadian Constitution in 1982 did is set out a new path – a path where the historic injustices, the continuing patterns of colonization, and the divisions and inequalities in society have to be dealt with. To be clear, this is a not a new path that has always been embraced. Many governments have moved with reluctance – and stayed in old patterns. The journey of decolonization and reconciliation is complicated – often painful and never easy.

But the inclusion of Indigenous rights in the Constitution has changed the dynamics. The Courts have become very active vehicles intervening to try to advance reconciliation. The injustices have increasingly come out of the shadows, and more of the Canadian public has become voices for change. And slowly, governments are learning they must change in real ways.

Today, for both Indigenous peoples, and the Government of Canada, the challenge is to finally make the fundamental shifts towards reconciliation from which we cannot turn back. We now have over 170 court cases in Canada dealing with Indigenous rights. We also have the United Nations Declaration on the Rights of Indigenous Peoples, a document that our Government endorsed last year without qualification. The challenge today is to actually use these tools to ensure practical benefits on the ground in communities, and to ultimately improve the lives of Indigenous peoples.

The colonial legacy however is a heavy burden even with good intentions and political will: the poverty, the health and social issues, the breakdown of the institutions of social order, and the dependency. There is considerable rebuilding that is needed. It requires recognition. It requires healing. It requires forgiveness. It requires trust.

As an important step, in 2008, the Government of Canada formally apologized to Indigenous peoples for the tragedy of residential schools and established our own Truth and Reconciliation Commission. Our Commission’s objective was to specifically examine the dark period of the history of the residential schools.

Justice Murray Sinclair, the Chair of the Commission and now a member of Canada’s Senate, has publically acknowledged that Canada’s Commission was modelled after your TRC. Each of our countries’ Commissions were implemented as a way to acknowledge the human rights violations of the past in order to build new relationships for a better future.

The TRC in Canada documented the stories of abuse told by survivors while honouring their truth, and it made numerous recommendations in a report released at the end of 2015. Those recommendations or “calls to action” address many aspects of the reconciliation project through the lens of the residential school experience.

Our Government has committed to implementing every one of these Calls to Action where the federal government is implicated.

Our Government has also taken another important step toward reconciliation by facing another dark legacy – the over 1,200 Indigenous women and girls who have been murdered or reported missing.

Although Indigenous women make up 4 per cent of Canada’s female population, 16 per cent of all women murdered in Canada between 1980 and 2012 were Indigenous. This is completely unacceptable.

This past September, our Government launched an independent national inquiry into missing and murdered Indigenous women and girls. That important work is ongoing and will conclude in 2018.

There is no question that the combined work of the Truth and Reconciliation Commission and now the Inquiry into Murdered and Missing Indigenous Women and Girls will be invaluable in the healing and truth-telling that are part of the journey of reconciliation.

But, as the late Nelson Mandela taught us – beyond the necessary apologies and beyond the emotional work of truth telling and of healing – reconciliation actually requires laws to change and policies to be rewritten.

As the Minister of Justice, it is my responsibility to ensure that our country’s laws and policies actually do change based on the recognition of rights. There are numerous laws and policies that need to change and new ones that need to be developed.

So you may ask, where do we start?

In fact, the work has already started – with Indigenous peoples in the lead in undertaking the important community development work to rebuild. I take my hope for the future from how Indigenous nations are leading the way – and showing all of Canada what the future should look like.

Many Indigenous nations have further developed their own institutions of governance reflecting their own cultures and traditions – some at the local level, others regional or sometimes Canada-wide in scope.

Today, there are now over 40 former Indian Act bands that are recognized as self-governing within Canada and dozens more involved in some form of governance reform. These self-governing communities are doing significantly better both socially and economically than those that are not.

But of course, there is obviously much more and essential work the Canadian government must do. There is, in truth, still no simple legal mechanism for moving from denial and assimilation of a people to recognition and reconciliation. What we need to do is make a 180 degree turn so that our laws and policies are pointing in the direction of the future of reconciliation and transformation – not the past of colonization.

To this end, just last month, the Prime Minister established a Working Group of Ministers to review all federal laws and policies related to Indigenous peoples and appointed me as Chairperson. Our Working Group’s mandate is nothing short of transformative: to decolonize our federal laws, policies and operational practices, and to ensure that all aspects of Canada’s relationship with Indigenous peoples are rooted in the recognition of rights.

We understand it is going to take more than simply changing the rules. There are other supports that are needed to help communities and individuals to address the ongoing social and economic legacy of colonialism. And for us education is the key – something that I have come to appreciate during my trip is key in your country’s experience as well. To ensure that all Indigenous children receive a quality education. The rising tide, as they say, lifts all boats.

As with education, there are also health legacies that must be addressed – both physical and mental. And to ensure that all Indigenous communities have clean water – which in Canada it is hard to believe that many still do not. To these ends our government has made, and will continue to make, significant investments. But more will be needed. And of course there never seems to be enough. But truth be told, this is the new price of freedom when the wars of equality are over.

In my opinion, new nation-to-nation relationships and the resurgence of Indigenous self-governance – based on Indigenous legal traditions – will, over the next generation, change, for the better, the way Canada is governed – not only in transforming Indigenous Nations but our country as a whole.

As Indigenous peoples take back control of their lives, our country is strengthened – ensuring that we have a Canada that all Canadians aspire to live in. A country based on shared values and principles that we have spent years as a nation fostering – creating a fair, caring and compassionate society that ensures our place on this planet as one of the best countries in which to live.

But there is a lot of work ahead for all of us in Canada. Canada’s Indigenous peoples must come prepared to rebuild their nations and to assume the responsibilities that come from self-determination and self-government. Some are ready, willing, and able to do so today. Some will require more time.

In turn, the Government of Canada must do its part to support Indigenous nations in this rebuilding work. Canada must confront the history of colonization and the denial of Indigenous peoples and their rights, a legacy we continue to be surrounded by today. Canada must review its laws and its policies to ensure that they align with a recognition of rights approach. We must make the necessary investments into community development now.

The truth is that reconciliation is not easy. As South Africans know better than most, it is a long journey and one that often can be painful and difficult. But for those who believe in equality, peace and human dignity, it is essential – there is no other path.

Overcoming apartheid has made South Africa a stronger, more respectful, inclusive and prosperous nation. This is not to say that the journey is over; in fact, as I heard said many times during my visit, much work remains to be done. But South Africa has truly made remarkable progress and has generated valuable lessons that countries such as Canada can learn from.

And on this note, and before I close, I do want to reflect on being here at the University of Cape Town and speaking to you, the future generation of legal minds that will continue to guide your country along its journey of reconciliation and transformation over the years, and decades, to come.

Your school is renowned for its historic support for freedom. As students here, you carry that legacy with you. Law has been a tool of oppression, but under the Rule of Law it is an incredible tool for justice and for giving voice to the most disadvantaged. As tomorrow’s lawyers, you have an opportunity to shape your country’s future. Your Constitution is one of the most advanced in the world. You are empowered to play a pivotal role in shaping the future of your constitutional rights for all South Africans.

Your Faculty of Law was the place where great minds like Albie Sachs took part in the Defiance Against Unjust Laws Campaign and, within a lifetime, was appointed to your Constitutional Court. Your Faculty is also home to the Oliver Tambo Moot Court, whose namesake fought his entire life for a free South Africa but who died before your country’s first free elections. You honour him by awarding his name a permanent place within your Faculty.

Your university has also built on its reputation for inclusion and now has one of the most diverse university campuses in South Africa.

And in acknowledging, “the role of the law in creating a society that was characterized by oppression” and “remains deeply divided by inequality,” your Law School’s statement of values and goals draws an important connection between past wrongs and how they continue to impact the present. And the statement goes on to set out laudable goals for today and a future celebrating and promoting diversity.

These are values and goals that can be universally applied and certainly have great resonance in Canada. The willingness to acknowledge the past in our efforts to embrace diversity in the present makes our institutions and our societies stronger.

In closing, let me say this. Like the many inspiring South Africans I have met during my journey, I am optimistic by nature. And I am convinced that our two great countries will continue to see that better is always possible.

When Madiba received his honorary Canadian citizenship, he told our Parliament that in the world in which we all now live, the rich and poor, strong and weak, are all bound in a common destiny that decrees that none shall enjoy lasting prosperity and stability unless all others do as well. Prophetic words indeed.

Whether as the Indigenous minority population in Canada or the majority Black population here in South Africa, it is how we treat others and seek equality that is the true measure our humanity.

That is the message of reconciliation – the message of transformation. It is the message of South Africa. I believe it is the message of Canada. It is our collective message.

Gilakas’la. Thank you very much.