“I really want my deaf child who is 15 years of age to go to school too, just like any other normal student who goes to school every day.”
– mother of an Arviat teen after being told by the principal that
her deaf daughter should stay home from school in the afternoons because
the school lacked sufficient numbers of sign language interpreters.1
An Iqaluit teen cried as he described missing the equivalent of more than two years of classes because of frequent trips to Ottawa to have his cochlear implants tested and get expert care for his hearing loss.2
“We do have children with special needs and we do not have the services for them. They are discriminated against – we do not give them the proper services that they should have.”3
In negotiating the 1993 Nunavut Agreement, the Inuit leadership saw having a separate territory and government tailored to the aspirations of Inuit as essential to Inuit self-determination. Government services, including education, would be delivered closer to home, and in accordance with the Inuit language and culture. In a 2014 Northern Public Affairs article entitled “Language, Learning and the Promise of Nunavut,” the author discussed the government’s failure to meet the Nunavut Agreement’s promise of an education system with representative numbers of Inuit teachers, principals and other educators. In this article, the author addresses the issues and legal remedies around the failure of the education system to deliver equal education to Nunavut’s special needs students, both Inuit and non-Inuit alike. Given Nunavut’s 97% Inuit student body, the primary effects of these failures fall on Inuit. For this reason, remedies relevant to Inuit only are touched upon.
Inclusive education is based on the belief that all children and youth can learn, belong together, and be part of the school community.4 It is the opportunity for a child, regardless of individual challenges, to attend classes with other children of the same age, and receive an education based on individual goals and with adequate support.5 It is something that most parents instinctively want for their child.
Nunavut’s 2008 Education Act embraces all children in the goal of fostering individual potential in a high-quality public education system, toward developing confident, capable and contributing individuals:
Recognizing that public education needs to focus on students, their intellectual development and their physical, emotional, social, intellectual and spiritual well-being;
Recognizing that a high quality education is important for the development of confident, responsible and capable individuals who can contribute to Nunavut society;6
Children whose physical, intellectual, emotional, or social needs pose a challenge to their education in the standard classroom environment are referred to as having special needs. The Education Act refers to features of the education system particularly relevant to special needs students:
Believing that learning should be continuous and that all parts of the education system should work closely together to encourage and support life-long learning, the opportunity for continued personal development and the pursuit of post-secondary education, training and employment;
Affirming that all children can learn, that learning is an individual process, and that diverse learning needs and abilities should be supported in an inclusive education system;7
Addressing the educational requirements of a special needs child means, first, professionally assessing the child’s physical, intellectual, and emotional needs; second, assessing the adjustments or supports8 the child needs to function and achieve their full potential; third, actually providing these adjustments or supports; and finally, providing regular assessments. In spite of Education Act goals, these things are very difficult for Nunavut’s special needs children to get, absent the necessary financial and human resources.
Under section 41 of the Education Act, special needs students are entitled to have the education program adjusted and to get the support they need to meet their learning needs. Significantly, this right is limited by the qualifications that adjustments and supports must be reasonable, practical and appropriate having regard to the educational needs of other students.9
Under the Act and the Inclusive Education Regulations,10 diagnoses and supports, along with measurable goals and expected outcomes, are to be detailed in an individual student support plan (ISSP). Regular classroom teachers are responsible for identifying special needs students and providing the supports they need, or, where the student’s needs are significant, requesting a review by the school team.11 The school team is then responsible for developing the ISSP.12
Nunavut teachers are required by the Act to deliver differentiated instruction, meaning that they must adapt what is learned, how it is learned, or how learning is assessed, to meet each student’s needs. Teachers are to conduct continuous learning assessments at least three times a year to evaluate the student’s progress, and adapt lesson plans accordingly, with schools providing additional support to children who need it.13
The reality of what Nunavut schools provide falls far short. The Auditor General of Canada14 observed that Nunavut teachers have difficulty delivering differentiated instruction. Access to student support teachers (who have additional qualifications, lead the development of special needs programs, and assist classroom teachers) is limited. In addition, training in differentiated instruction is lacking for teachers and student support assistants, a paraprofessional category. Low attendance and large numbers of students with special needs exacerbate the challenges.15
The Auditor General found that fully seventy-five percent of student files reviewed did not even state whether students were receiving the services or adjustments they needed, or at the rate they needed them, or whether the right services, such as mental health support, were being made available. Sixty-five percent of ISSPs did not track student progress or the ISSP’s effectiveness. Importantly, students were found not to be receiving the services they needed because specialists were not made available in the community to diagnose and identify supports. 16
As with many health-related issues in Nunavut, diagnosis and services for special needs children are plagued by inadequate funding and resources, long wait times, and sporadic access to specialists. A February 2015 external review by Barbara Hall, commissioned by the Department of Education in response to the Auditor General’s Report, found that there is no government funding dedicated specifically to inclusive education, and that Nunavut’s school-age population is grossly underserved in terms of specialized assessments and educational psychology services. 17 Wait times after a referral range from three to six months or more, with services totally lacking in some regions. For example, the Kitikmeot region was found to have no mental health services for the school-aged population, and Qikiqtani had no speech services.18 One Iqaluit mother has reported that it took two years to schedule a neuropsychologist appointment for Attention Deficit Hyperactivity Disorder (ADHD) testing for her adolescent son.
The external review noted that the following categories of service providers were either completely lacking or insufficiently staffed: Teachers for the Hard of Hearing, Speech and Language Pathologists, Occupational Therapists, Physiotherapists, Teachers for the Vision Impaired, Behaviour/Mental Health Intervention Specialists, and Inuktut Rehabilitation Specialists.19 These challenges are intensified by high numbers of special needs students in Nunavut compared to southern Canada. For example, there is a forty percent higher incidence of hearing loss in the North than in the South.20
Lack of specialist services and supports is exacerbated by other systemic problems. Nunavut’s teachers are about seventy-five percent non-Inuit, and have a high turn-over rate. They are predominantly southerners, unfamiliar with the cultural milieu and social challenges of Nunavut, non-speakers of the mother tongue of their students and parents, and not likely to be well-trained in special needs.
Classroom teachers cannot, of course, be experts in every type of disability and can’t be expected to singlehandedly address the wide range of disabilities in Nunavut classrooms. They need access to specialists in learning disabilities, as well as psychologists, social workers and mental health workers.21
In at least one case, a private organization has taken steps to fill the breach. The 2015 Arctic Inspiration Prize went to Better Hearing in Education for Northern Youth, which fundraised to outfit classrooms with sound amplification systems for the approximately twenty percent of students who have significant hearing loss but were getting no classroom hearing supports.22
Limited or no access to diagnostic services means that there are no available statistics on many categories of disabilities among children in Nunavut. In a study of how Canada’s provinces and territories address students with ADHD, Nunavut received a less than satisfactory grade due to concerns about the lack of formal identification of students with special needs.23
With special needs instruction getting a failing grade, social promotion is the reality for Nunavut students – and a scourge which parents lament and politicians repeatedly vow to eliminate. Affecting many students, social promotion means students are promoted upwards regardless of whether they have mastered the curriculum, and without remedial learning plans.24 Social promotion, together with Inuit alienation from the English-based school system still operating in Nunavut, results in around seventy percent of students dropping out by around Grade 10, as they discover they lack the literacy and numeracy skills to be successful in high school.25
In view of the high push-out rate, and the prevalence of suicide among Nunavut youth, parents are starting to explore what rights and legal remedies they have to force the government to address the systemic deficiencies in Nunavut’s education system.
Nunavut Human Rights Act
Human rights legislation provides one avenue for Nunavut parents and their special needs children to obtain equal treatment in education.
The Nunavut Human Rights Act26 is founded on the recognition of the inherent dignity and equal rights of all persons, in accordance with the Universal Declaration of Human Rights. It operates within the framework of Inuit Qaujimajatuqangit, supercedes all other territorial legislation, and expressly binds the Government of Nunavut. The Act is administered and enforced by a Nunavut Human Rights Tribunal.
Section 12(a) of Nunavut’s Human Rights Act states that it is discriminatory “unless done in good faith and with reasonable justification. . . [to] deny to any individual or class of individuals any goods, services or facilities that are customarily available to the public” on the basis of a prohibited ground, including disability. In short, equal education cannot be denied to special needs students without proven justification.
The Supreme Court of Canada has spoken to this issue in the case of Jeffrey Moore, a British Columbia child with a severe dyslexia learning disability. In Moore v. British Columbia (Education),27 Jeffrey’s father had filed a human rights complaint against British Columbia and the North Vancouver School District asserting discrimination because the intense remedial instruction Jeffrey needed in his early school years was not available in the public school system. British Columbia has a Human Rights Code similar to Nunavut’s, allowing for denial of equal access to services only where there is “a bona fide and reasonable justification” for doing so.
Justice Abella, writing for the majority, noted that it was up to Moore to first show that there was an adverse impact on Jeffrey’s access to education, and that his dyslexia was a factor. If Moore did that, it would then be up to the Province to show that the impact on Jeffrey was justifiable, in order to avoid liability.
Justice Abella reviewed the objectives of the British Columbia School Act. In words similar to the Nunavut Education Act, the B.C. Act states that the purpose of the school system is to enable all learners to develop their individual potential and acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society. Justice Abella pointed to provincial policy stating that the government was responsible for ensuring that all youth have the opportunity for high quality schooling, and that schools should develop students who, among other things, are able to learn, think critically and communicate information.
Justice Abella found that Moore met his burden by showing that Jeffrey required intensive remediation in order to access his education, and that the school district failed to provide that remediation. Moore showed that what Jeffrey needed – one-on-one instruction in a setting designed to minimize distractions – was only available outside the public school system, since the diagnostic centre where he could have received that remediation had been closed by the District for financial reasons.
The burden then shifted to the School District to show the closure of the diagnostic centre was justified. The question was whether, in view of the budgetary crisis the School District faced, there were no reasonable or practical alternatives to the denial of intensive remediation services. Justice Abella stated that:
An employer or service provider must show ‘that it could not have done anything reasonable or practicable to avoid the negative impact on the individual.28
In Jeffrey’s case, the Supreme Court upheld the Tribunal’s finding and damages in favour of Moore. It accepted that, while the District faced serious financial difficulties, it was not justified in making cuts disproportionately to special needs programs, while retaining other discretionary programs, such as an outdoor school. Importantly, the District had not bothered to assess what alternatives could have been made available to special needs students with the closure of the diagnostic centre. The failure to undertake such an assessment, the Court found, undermined the District’s position that financial constraints prevented it from offering the adjustments Jeffrey required.
The Moore decision gives clear guidance regarding the government’s obligation to prioritize available resources to promote equal access to education for special needs students. In Nunavut, a similar case might be made if it were shown that (i) the Government of Nunavut (GN) failed to provide adequate funding to enable special needs students, such as hearing impaired students, or those with FASD or ADHD, to access equal education, and (ii) that it did so without adequately examining other options for addressing budgetary concerns that would be reasonable and less injurious to special needs students. Such evidence might particularly impress a court in view of the large number of special needs students in Nunavut relative to the territory’s entire student population.
Also relevant here is Hall’s external review of inclusive education in Nunavut, discussed above, which found that the GN should be allocating specific funds to inclusive education, and should require Regional School Operations to use a certain percentage of their budgets for expenditures that support inclusive schooling, such as assistive technology, specialized equipment and resources, contracting of specialized services, and staff development to better address special needs.29 Hall recommended the GN identify a detailed list of allowable expenditures for identified inclusive education budgetary allocations. This would prevent targeted special needs funding being used for more general purposes, such as new playground equipment, but need to be targeted at special needs specifically.30
The GN’s failure to undertake comparative assessments of expenditures benefitting special needs and non-special needs students may well be viewed unfavourably by the courts, as Justice Abella stated in Moore: “[i]n order to decide that it had no other choice, [the district] had at least to consider what those other choices were.”
Nunavut’s special needs students also have equality rights under the Canadian Charter of Rights and Freedoms, and specifically section 15, which guarantees equal protection and benefit of the law and applies to all levels of government.
Human rights legislation and section 15(1) of the Charter have the common purpose of overcoming substantive discrimination. Section 15 cases have historically been more difficult for litigants to pursue than human rights cases, due to more complicated and onerous proof requirements. In more recent cases, however, the Supreme Court has simplified the Charter requirements in order to promote section 15’s substantive equality purpose.
The section 15(1) equality guarantee requires that educational programs be delivered on an equal basis between the disabled and non-disabled. A leading Supreme Court case addressing Charter rights and special education is Eaton v. Brant County Board of Education.31 In Eaton, the parents of Emily Eaton, a 12-year old with severe cerebral palsy, had objected to a provincial decision to place Emily in a special education classroom as opposed to a regular classroom. Emily’s parents argued that this placement violated her right to an equal education. The Supreme Court of Canada made it clear that the school system had to accommodate Emily’s special needs, stating:
[I]t is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.32
The Court went on to state that whether placement in a special classroom, as opposed to an integrated classroom with other students, violated the child’s right to an equal education depends on the needs of the child:
In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils to access the learning environment the learning environment they need in order to have an equal opportunity in education.33
In Emily’s case, the Court found that special education was necessary to enable her to access the learning environment she needed.34
In another case, Eldridge v. British Columbia,35 the Supreme Court of Canada held that the British Columbia health services plan discriminated against hearing-impaired persons by failing to provide sign-language interpretation to deaf persons seeking medical attention. Because communication was a critical element of most medical services, it was a denial of equal benefits not to provide sign-language interpretation that would have allowed for effective communication between a deaf patient and their doctor.
Both the Eaton and Eldridge cases provide guidance on how a Charter case could be brought to enforce the Government of Nunavut’s Charter obligation to provide equal access to services to disabled students.36
International law can also provide direct avenues of redress, or assist Canadian courts in interpreting Canadian law.
Articles 28 and 29 of the United Nations Convention on the Rights of the Child (CRC), ratified by Canada in 1991, provides that all children have the right to an education, and that a child’s education should develop each child’s personality, talents, and abilities to the fullest.
Article 23 of the CRC states that children with disabilities have the right to special care and support. The UNESCO Salamanca Statement (1994) called on all governments to give the highest priority to inclusive education. Similarly, the UN Convention on the Rights of Persons with Disabilities (2006) calls on all States Parties to ensure an inclusive education system at all levels.
Inuit wishing to look at this issue through an international lens might also examine international instruments related to indigenous rights. For example, UNESCO’s Convention against Discrimination in Education prohibits any discrimination, exclusion or segregation in education. UNESCO has recognized that inclusive education is not applicable only to children with disabilities, but may be applied to achieve the right to education more broadly across societies, by children of marginalized groups. Belonging to more than one identifiable minority, such as being Indigenous and disabled, has been recognized as significantly increasing one’s vulnerability.37 Such international instruments, mechanisms and studies are a strong foundation for a human rights-based approach to asserting culturally and linguistically appropriate inclusive education for Inuit children.
In addition, Article 14 of the United Nations Declaration the Rights of Indigenous Peoples recognizes that indigenous children have the right to all levels and forms of education without discrimination.
Finally, the United Nations Commission on Human Rights’ Special Rapporteur on the Rights of Indigenous Peoples, the Inter-American Commission on Human Rights’ Special Rapporteur on the Rights of the Child, the Permanent Forum on Indigenous Issues, and the Expert Mechanism on the Rights of Indigenous Peoples, are just some of the available sources of information and avenues to provide input and obtain redress for violations of human rights, from formal petitions and complaints, to informal requests for and input into studies and reports.
The Inuit of Nunavut also have Aboriginal rights that could be asserted to advance their children’s access to education, generally and as it relates to special needs.
When the Nunavut Agreement came into effect in July 1993, the Inuit of Nunavut ceded their territorial Aboriginal rights to lands and waters anywhere within Canada. They did not, however, cede their right to non-territorially defined matters such as self-government or language and culture. This likely includes the inherent right inherent right to educate their children in accordance with their own language and culture. These rights are internationally recognized, as seen in the United Nations Declaration on the Rights of Indigenous Peoples, officially adopted by Canada in May 2016.
As Inuit are often reminded, the territorial government is a public government, representing both the 85% Inuit and the 15% non-Inuit populations of Nunavut. If, however, the Inuit determine that the Government of Nunavut is not adequately meeting the needs of Inuit children, Inuit may seek to assert their right to self-government. One way to do this would be to create a Nunavut Inuit school board, like the Commission scolaire francophone in Nunavut, to deliver education in accordance with Inuit priorities.
A word about jurisdiction
By virtue of the Crown’s assertion of sovereignty over the lands traditionally used and occupied by the Inuit of Nunavut, the Inuit and the Crown in Right of Canada have a direct, bilateral and fiduciary relationship.
Section 91(24) of the Constitution Act of 1867 recognizes Parliament’s legislative jurisdiction respecting “Indians and Lands reserved for Indians.” In 1939, in the case Re Eskimos38 the Supreme Court of Canada held that Inuit are included within the term “Indians,” in section 91(24). This was based on the common meaning of the word “Indian” in 1867, and it confirmed Parliament’s legislative jurisdiction over the Inuit. Parliament also has Constitutional jurisdiction to make laws in relation to all three northern territories.
Although the Government of Nunavut signed the Nunavut Agreement as part of the Crown in Right of Canada, and is bound by the Agreement (as are all persons), it is not a stand-alone party to the Agreement. The Nunavut Agreement is a two-party agreement. Nor is there a “territorial Crown” in Canada, as there is a Crown in right of each of the provinces. Rather, the Nunavut legislature is a creature of the Nunavut Act, a statute of Parliament. The Government of Nunavut is a public government created by Parliament as result of the agreement made by the Crown in Right of Canada with the Inuit of Nunavut in the Nunavut Agreement.
Subsection 23(m) of the Nunavut Act gives the Nunavut legislature statutory authority over public education in Nunavut. In giving Nunavut legislative authority in this area, Parliament did not sever the Crown’s ongoing fiduciary relationship directly with Inuit, or impair Parliament’s ability to make laws directly in relation to Nunavut Inuit or the Nunavut territory. This fiduciary relationship and unimpaired ability to make laws includes the subject matter of education. It might be added that, as a practical matter, Parliament funds Nunavut’s education system through its annual formula funding to the Government of Nunavut, and has the ability to attach conditions and goals to the use of federally-derived moneys in relation to education or any other topic.
In short, by virtue of the Crown’s relation with the Inuit of Nunavut, the Government of Canada, together with the Government of Nunavut, have broad political, legal, and moral responsibilities, and practical powers and tools, to ensure – and for Inuit to expect – that all Inuit children will be provided with ready access to an education equal to that of other Canadians.
As a final note, many Nunavut parents lack access to the court system for financial reasons. It is therefore encouraging that the Liberal government has decided to revive and expand the Court Challenges Program, which was defunded in 2006 under the Conservative government.39 The Court Challenges Program provides financial support to Canadians to access the courts for cases that are considered to be of national significance, in particular those pertaining to human rights and Charter rights. ◉
Laurie Pelly is Legal Counsel with Nunavut Tunngavik Incorporated. She is based in Ottawa.
The author thanks Anna Logie for her research which aided in the writing of this article.
1. CBC, “Deaf student told to stay home from school in afternoons, says mother,” online: http://www.cbc.ca/news/Canada/north/deaf-student-told-to-stay-home-from-school-in-afternoons-says-nunavut-mother-1.3581849
2. CBC, “Nunavut gets poor grade from audiologists for lack of child hearing programs,” online: http://www.cbc.ca/news/canada/north/nunavut-children-hearing-loss-screening-1.3409415
3. Inuit Tapiriit Kanatami, Inuit Children with Special Needs: Perspectives of Early Childhood Educators, at http://www.inuitknowledge.ca/sites/naasautit/files/attachments/ITK_SpecialNeeds_English.pdf
4. UNESCO defines inclusive education as: a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the state to educate all children. UNESCO, Guidelines for Inclusion: ensuring access to education for all, Paris 2005.
5. Auditor General of Canada, Report to the Legislative Assembly of Nunavut – 2013, Education in Nunavut, at 17, Exhibit 4.
6. Nunavut Education Act (2008), Preamble.
8. Supports include accommodations, exemptions, diagnostic assessments, specialized services and assistive technology.
9. See section 41 of the Nunavut Education Act (2008).
10. Inclusive Education Regulations, R-017-2011 (Sept. 26, 2011).
11. See Section 43 of the Nunavut Education Act (2008).
13. Nunavut Education Act, s.75(2) (2008). See also http://www.gov.nu.ca/education/information/student-assessment-and-evaluation
14. Auditor General, supra, note vi, at 17-29.
15. Schools reported that students attended class less than 50% of the time, with a low of 27%. In a 2014 Northern Public Affairs article entitled “Language, Learning and the Promise of Nunavut,” this author discussed that low attendance is a symptom of systemic malfunction with students alienated from a school system predominantly taught by southern educators not versed in the Inuktut language or the culture of their students. http://www.northernpublicaffairs.ca/index/magazine/volume-2-special-issue-revitalizing-education-in-inuit-nunangat/language-learning-the-promise-of-nunavut/
16. Auditor General, supra, note vi, at para. 60.
17. B. Hall, Reaching and Teaching All Students – A Model to Guide the Practice of Inclusive Education in Nunavut, Final Report of the External Review of Inclusive Education (Feb. 2015) at 13-14.
18. Id. at 14.
19. Id. at 25, fig. 4.
20. NunatsiaqOnline, Arctic Inspiration prize winners crank up sound in Qikiqtani classrooms, online: http://www.nunatsiaqonline.ca/sroties/article65674arctic_inspiration_proze_winners_crank_up_sound_in_Qikiqtani_classrooms
21. See http://www.cbc.ca/news/canada/special-ed-iep-support-1.3751522 quoting Heather Smith, President of the Canadian Teachers’ Federation, on the nation-wide scope of the problem.
22. NunatsiaqOnline, supra note xxi.
23. See Report of the Centre for ADHD Advocacy Canada 2010 cited in http://www.cbc.ca/news/technology/3-provinces-get-failing-grades-on-adhd-report-1.926530
24. Auditor General, supra, note vi, at 17, Exhibit 4.
25. See T. Berger, Conciliator’s Final Report, The Nunavut Project, at 28 (Mar. 1, 2006), discussed in L. Pelly, supra, note xvi.
26. Human Rights Act, S. Nu., c.12., 2003.
27.  3 S.C.R. 360 (S.C.C.).
28. Id. at para. 49.
29. Hall, supra, note xix, at 23.
31.  1 S.C.R. 241 (unanimous), Sopinka, J.
32. Id. at para 67.
33. Id. at para. 69.
34. See also Wynberg v. Ontario (2006) 82 O.R. (3d) 561 (C.A.) (leave to appeal to S.C.C. denied April 12, 2007), in which the Ontario Court of Appeal found that parents of autistic children had not presented enough proof to show that the school program provided to their autistic children was inappropriate and inadequate.
35.  3 S.C.R. 624 (unanimous), La Forest J.
36. It is also possible that a common law case could be made out in negligence, or educational malpractice, for example, a class action lawsuit on behalf of current and former hearing-impaired students in Nunavut. Such a case might target that the Government of Nunavut, having a duty of care to Nunavut’s students, has failed to adopt measures that are necessary to address the reasonably foreseeable injuries to hearing impaired students in their ability to secure an education, resulting in damages. Such cases have been attempted in Canada in the past, but none appear to have been successful to date.
37. UNICEF, The Right of Children with Disabilities to Education: A Rights-Based Approach to Inclusive Education in the CEECIS Region, at 5.
38.  S.C.R. 104.
39. See http://www.cbc.ca/news/politics/court-challenges-program-1.3970103 ; Inclusive Education Regulations, supra, note xi, at s.13(a).