Indigenous Name Reclamation Project

With Call to Action 17 of the Truth and Reconciliation Commission of Canada, the Federal Government pledged to facilitate residential school survivors and their descendants reclaiming their traditional/ancestral names. These names were stripped from individuals, or in other cases, necessarily altered, as a direct result of the policies and practices of cultural genocide that continue to this date. Two of the first government departments to publicly offer to waive fees and facilitate name reclamations were Passport Canada and Immigration, Refugees and Citizenship Canada. Their Spring 2021 announcement, initially posted online to several websites, raised significant questions, prompting myself and my colleagues at Heron Law Offices to get involved in pro bono efforts to assist Indigenous applicants in navigating this process.

Challenges in the Process and in Providing Pro Bono Services

The most pressing question, among the dearth of details provided, was that the announcement appeared to catch several provincial vital statistics offices off guard. Many had not prepared (nor made public) their own instructions for name reclamation. A change of name certificate served as a “prerequisite” and starting point for initiating processes with other administrative bodies, such as driver licensing offices, land title offices, and passport offices.

Efforts were, and still largely are, occurring through unpublished policy, veiled discretion, and unclear and contradictory guidance. Much of our early efforts with the project involved pressing administrative bodies to be more flexible, to waive fees, and to remove barriers such as setting arbitrary end dates for fee waiver eligibility or adding unnecessary and costly steps. Often, successful efforts with one process would create corresponding challenges with another as the various bodies lacked coordination in their approaches. As an example, early in the process, certain police authorities would charge Indigenous applicants for fingerprinting, despite other bodies advertising that the entire process would be fee exempt.

The work also required us, as pro bono service providers, to consider (and re-consider at many times) our capacity to assist as settlers/descendants of immigrants. We needed to prepare ourselves to be able to receive clients, which involved crucial training with Myrna McCallum on trauma-informed practice. What caught us off-guard and what we were unprepared for was the anger and frustration that would be directed toward government departments, and that we would be unwillingly forced to be go-betweens for our clients and those departments.

The most challenging, but likewise rewarding, part was to hear the stories of those telling us why they were pursuing the process — many going back to personal histories and memories that we had to navigate around gingerly. Many times, we struggled with balancing the need to “finish the paperwork” with the need to hold space and realize this was not just any other administrative process for those involved.

The Role of Technology

Technology turned out to be the tool that was front and centre of the campaign to assist and advocate for Indigenous applicants. It served as the initial platform to engage pro bono applicants from across Canada and be able to meet them amidst the pandemic and other barriers. Technology also helped spread awareness, largely through online articles and blog posts, which helped Indigenous law firms and legal clinics put our efforts on the radar of those in the community.

Technology was also at the core of many bureaucratic hurdles that prevented the name reclamation process from operating effectively. Many applicants were unable to utilize accurate characters to represent their names due to limitations posed by government departments, leading them to have to modify them or forgo the process altogether. Estimates predicted that phonetic system changes could take several years. In some cases, decades could pass before the necessary upgrades took place. Oftentimes, the excuse provided was that change for one department would create a clash for another, with one government official even telling us that international travel restrictions would make it impossible for folks with certain characters in their names or with longer names to travel to other countries. For others seeking support, the name reclamation process was inaccessible, requiring legal affidavits to be sworn or hours-long trips to cities in order to track down the required paperwork.

Overall, while we were able to support over a dozen applicants, the initiative was still largely effective only in serving applicants in urban communities. Among them, many who had access to resources had to take time off work to meet with us or spend the many days going (often back and forth) to various offices. We can already foresee that the next iteration of challenges will involve how to bring the work better into the community, who should deliver the workshops and one-on-one assistance required, and how to properly obtain stakeholder/community feedback. One recommendation we had was to bring the workshop downtown and liaise with Indigenous youth groups, given the unique impacts and importance of name reclamation for this particular demographic. The forms and processes, even for administrative lawyers who spend every day filing government applications, can be tedious and frustrating.

Duty to Consult — Or Even Consider

The lack of stakeholder feedback in building the technological systems that underpin name reclamation mirrors the concerns over minimum efforts taken to consult, or even the bare minimum to consider, in many cases, the impacts of ongoing advances in technology, automation, and artificial intelligence on Indigenous communities.

In a sense, the Indigenous name reclamation project provides a preview of what will happen if processes are not coordinated or if technological solutionism — or a lack thereof — is blindly relied upon. It seems like neither a bare minimum “duty to consider,” let alone the constitutional requirement of a duty to consult, is being adequately respected for Indigenous persons at this time when it comes to the use and implementation of new technological systems, including AI. Factoring in the additional layers of algorithmic bias and lack of cultural sensitivity in automated decision-making processes, Indigenous peoples face an even greater disadvantage. This makes it imperative to bring Indigenous voices to the table before these technologies are implemented, not only to ensure that appropriate safeguards are introduced, but also to show respect for Indigenous traditions, customs, practices, and importantly, legal frameworks, from which we as practitioners have much to learn.