Indigenous Languages in Parliament: Comparing Canada and Australia

Article 6 / 13 , Vol 44 No 4 (Winter)

Indigenous Languages in Parliament: Comparing Canada and Australia

In 2018, a committee of the Canadian House of Commons conducted an inquiry into how it might better incorporate Indigenous languages in its proceedings. One witness in that inquiry gave evidence from over 15,000 kilometres away, in the Northern Territory of Australia. While many of the challenges faced by speakers of Indigenous languages in Canada and Australia are very different, it appears that each jurisdiction might have something to learn from the other – as indicated by the knowledge shared in 2018. This article advances the project of comparing the Canadian and Australian approach to incorporating Indigenous languages in federal and sub-federal parliamentary proceedings. The analysis will touch upon the symbolic importance of facilitating Indigenous language use in parliament, the practical benefits flowing from the same, and the logistical issues – including interpretation, translation, recording and funding – that arise.

In May 2017, Robert-Falcon Ouellette gave a speech to the Canadian House of Commons on violence within Indigenous communities. Ouellette spoke in Cree, because he wanted to “address the violence in a manner that would be noticed” and to reach the younger population.1 Although Ouellette had contacted the relevant parliamentary office ahead of time and provided the English text of the speech, no simultaneous interpretation was offered from Cree to English. Although Ouellette’s use of Cree did not contravene the Standing Orders, it highlighted the fact that no mechanism existed to have his words simultaneously interpreted so that other Members could understand him. After the speech, Ouellette objected to the status quo and the Standing Committee on Procedure and House Affairs conducted an inquiry into the use of Indigenous languages in House Proceedings and Committees.2 During the course of that inquiry, the Committee received testimony for 31 witnesses, the last of whom gave evidence from some 15,000 kilometres away in Australia. That witness – Michael Tatham, Clerk of the Legislative Assembly of the Northern Territory – explained the extent to which Indigenous languages were then accommodated within the Northern Territory Parliament. This distant Australian witness’ appearance before the Committee, and the inclusion of his evidence in the final report, suggests that – as much as there are significant differences between the obstacles to Indigenous parliamentary involvement in Canada and Australia – there are also potentially some shared experiences. In this article, we hope to outline the current position in Australia with respect to the use of Indigenous languages in Parliament, touching upon the symbolic importance of facilitating Indigenous language use, the practical benefits flowing from the same, and the logistical issues – including interpretation, translation, recording and funding – that arise. In the course of our discussion we focus in particular on recent developments and, where possible, we drawn on comparisons with the Canadian experience.

Indigenous languages in Australia, compared with Canada

Indigenous people make up about 3 per cent of the Australian population, although that percentage is considerably higher in certain jurisdictions, such as the Northern Territory (where Indigenous people make up about 35 per cent of the constituency).3 in Canada, for comparison, Indigenous people make up 4.9 per cent of the population, but make up a majority of the population in some territories (for example, Indigenous people make up 86 per cent of the population in Nunavut and 51 per cent of the population in the Northwest Territories).4

About 18 per cent of Indigenous Australians speak an Indigenous language, including 11 per cent who speak an Indigenous language as their main language at home.5 Again, this portion is significantly higher in some places, particularly remote regions (where over half of Indigenous people speak an Indigenous language).6 In Canada, 16 per cent of Indigenous people speak an Indigenous language.7

It is estimated that there are presently around 141 Indigenous language varieties spoken throughout Australia.8 In Canada, the figure is over 70.9 Many of those languages, however, are only spoken by relatively small numbers of people and even the “stronger” languages are considered to be under threat.10 In the last few decades, there has been an increasing public awareness, particularly among non-Indigenous Australians, of the importance of preserving and protecting Indigenous languages. This recognition has resulted in some important developments, including the development of legislation and policy to protect Indigenous languages,11 and the limited inclusion of some Indigenous languages within school curricula.

Indigenous languages in Australia share three important similarities with Canada that bear upon the history of Indigenous languages in parliamentary proceedings. First, Indigenous people make up a relatively small proportion of the national population in both countries. Second, both Australia and Canada being federations, Indigenous people make up a significant portion of the population in some sub-national jurisdictions. Third, there is no single common Indigenous language in either country, but rather a rich diversity of languages. In each of these three respects, Canada and Australia can be contrasted with New Zealand, which is a unitary jurisdiction with a significant Indigenous population and a single language.12

Indigenous languages in Australian parliaments

Indigenous Australians have faced electoral obstacles since Australia’s inception, however since the election of the first Indigenous Australian to federal parliament in 1971 there has been a relatively steady increase in electoral representation.13 The first use of an Indigenous language in an Australian parliament appears to have been in 1981.14 Since then, Australia has seen a dramatic rise in Indigenous language use in Australian parliaments.

Many of the uses of Indigenous languages in Australian parliaments occur in a ceremonial, symbolic or formal contexts. For example, short Indigenous language phrases are often used – including by non-Indigenous parliamentarians – in acknowledgments at the start of significant speeches.15 Another common context for the use of Indigenous languages in Australian parliaments is in a parliamentarian’s inaugural speech, especially if the parliamentarian is Indigenous16 or represents an electorate with a significant Indigenous population.17

It has been much less common for Indigenous languages to be used in substantive policy debate, as opposed to set piece speeches. Part of the reason for this lies in the historic unwillingness of Australian parliaments to provide interpreters. Instead, Australian parliaments in recent decades have either outright banned the use of Indigenous language in parliamentary debate or have required a parliamentarian to provide a written translation ahead of time – thus effectively precluding ex tempore or responsive uses of Indigenous languages.

The operation of such problematic policies can be seen in a widely-publicized incident in 2015, when an Indigenous parliamentarian in the Northern Territory was told that she would be ruled disorderly by the Speaker of the House if she continued to speak in an Indigenous language without obtaining advance permission.18 Since 2015, however, the Northern Territory has made progress on this issue, largely due to the advocacy of Indigenous parliamentarians. As a result of amendments to the Standing Orders, an Indigenous member of the Northern Territory Legislative Assembly recently made history by apparently being the first person in Australia to use an Indigenous language in substantive parliamentary debate with a simultaneous interpreter present.19 (There are obvious parallels here with the experience of Robert-Falcon Ouellette in Canada. After his untranslated speech in Cree in 2017, Ouellette advocated for, and ultimately brought about, changes in the Standing Orders of the House of Commons.)

In the remainder of this article, we use the recent developments in the Northern Territory as a launching pad to consider the Standing Orders of the other Australian parliaments, and how they compare to those in Canada.

Standing Orders and procedures in Australian parliaments

In many Australian parliaments, including the federal Senate and House of Representatives,20 the Standing Orders contain no provision for the use of a language other than English in debate.21

This silence is open to competing interpretations. One perspective sees the silence as meaning English is simply assumed to be the language of the parliament and any derogation from that assumption requires suspension of the Standing Orders. That view appears to have been taken by parliaments around Australia from time to time, where it has been thought necessary to suspend standing orders to allow a parliamentarian to speak in an Indigenous language. Another view sees the silence of the Standing Orders as suggesting there is no formal requirement for a parliamentarian’s contributions be in English, so long as those contributions meet the other requirements including for orderliness, non-offensiveness, timeliness and relevance.

It is not necessary to attempt to resolve these competing positions here. For present purposes it is enough to say that the ambiguity is liable to create confusion. That much is borne out by the events in the Northern Territory in 2015 when the Standing Orders contained no specific provision for the language of the Legislative Assembly and the Speaker interpreted that to mean that Indigenous language use could be ruled disorderly.22

The Northern Territory subsequently amended its Standing Orders to afford parliamentarians a right to speak in a language other than English. That provision read:

“Speaking in a Language other than English

A Member may rise to speak in any language other than English so long as an oral translation is provided in the English language by the same Member immediately prior to the words spoken in the language other than English and a written translation is tabled immediately prior to the contribution by the Member speaking. Apart from existing arrangements for extensions of speaking times, no allocation of additional speaking time is provided for translation purposes. When the language spoken is a language other than English, the Member speaking will also make the original text language available for incorporation into the Parliamentary Record alongside the English language text.”23

This provision imposed four significant obstacles or burdens to the use of Indigenous languages in parliamentary debate. First, a written English-language translation had to be provided ahead of time. Second, an oral English-language translation had to be provided immediately before the Indigenous language. Third, there was no provision for an interpreter to be present to assist with the English translation. Fourth, there was no entitlement to additional time to take account for the duplication of the content. Those requirements made it difficult to use Indigenous languages in parliament and impossible to do so without considerable forward planning.

Unsurprisingly, members of parliament who speak Indigenous languages objected to the cumbersome and restrictive nature of that Standing Order and sought two amendments. The effect of these amendments would have been to remove the requirement for a written English translation to be provided ahead of time and the requirement that the English translation be spoken orally before the Indigenous language content. The amendments proposed that the Indigenous language could be spoken first followed by an oral English translation, either by the member or an interpreter. While those amendments were initially not accepted,24 further consideration ultimately led to a recommendation to abolish the problematic Standing Order.25

As a result, the position in the Northern Territory is that members must seek leave to speak in a language other than English. While the requirement for leave, rather than an entitlement, is somewhat concerning, it is anticipated that leave will ordinarily be granted. The relevant resolution of the Legislative Assembly states:

“4. members seeking leave to speak in languages other than English must provide the Speaker with adequate notice for the Speaker to make any arrangements to provide assistance so that the member may be understood and the Parliamentary Record may accurately report the contribution if leave of the Assembly to speak in the other language is granted

5. arrangements may include use of an interpreter, or relying upon the member providing their own translation orally or in writing; where a translation is provided only in writing, other members will be permitted an opportunity to respond to any concerns they have about content in written translations.”26

It is worth noting that the long road to reform of the Standing Orders in the Northern Territory included consideration of the position in Canada, and there has been correspondence between the clerks of the Legislative Assemblies in the Northern Territory and in Nunavut.27

A brief look at Canada

All of which brings us back to the present position in Canada. As in Australia, it has been the Canadian territories that have pioneered the use of Indigenous languages in legislative deliberation. In the Legislative Assembly of the Northwest Territories, parliamentarians have had the right to use an Indigenous language in parliamentary debate since 1990, when nine Indigenous languages were recognised as “official”.28 In 2018, there were three members of the Assembly who regularly used Indigenous languages.29 Similarly, in the Legislative Assembly of Nunavut – a Territory of Canada where 86 per cent of the population speak Inuktitut as their first language – Inuktitut is extensively used during debate and Hansard is published in English and Inuktitut.30 Pursuant to its Languages Act, Yukon, the final of Canada’s three territories, permits the use of the territory’s eight Indigenous languages in parliamentary debate.31 The Act also provides for the translation of Hansard and other records into those languages when authorized by the Assembly.32 However, it does not appear that this yet happens in practice.33

At the federal level, a 2008 Senate report recommended that parliamentarians be permitted to use Inuktitut when debating and that simultaneous interpretation be provided.34 Those recommendations were accepted, and there have now been a number of instances in which parliamentarians have addressed the Senate in Inuktitut with interpretation in English and French.35 Leave may also be granted for Senators to debate in other languages.36

In the House of Commons, progress on the use of Indigenous languages in parliamentary debate was precipitated by Robert-Falcon Ouellette’s address in 2017, discussed above. Ouellette was unable to ensure the timely translation or interpretation of his address to the House in his Indigenous language.37 The Member subsequently sought a ruling that his parliamentary privileges had been violated, Canadian parliamentarians have a constitutionally protected right to use Indigenous languages in Parliament and be understood by other Members.38 While the Speaker did not find that a prima facie case of privilege existsed in that case,39 the issue resulted in a parliamentary inquiry, which ultimately formalised the processes around Indigenous language use in the House of Commons.40

Conclusion

We suggest the clear and comprehensive recommendations made by the House of Commons in Canada should be considered by Australian parliaments.41 The Canadian model offers the clarity that is missing from the many Australian jurisdictions that do not specifically address the issue. Further, the Canadian territories show that it is feasible to create an entitlement to Indigenous language use. This approach should be preferred in Australia rather than leaving it as a matter requiring the leave of the Speaker, as is presently the case in the Northern Territory.

Notes

1 Robert-Falcon Ouellette, “Honouring Indigenous Languages Within Parliament” (2019) Canadian Parliamentary Review 3, 4.

2 See House of Commons Standing Committee on Procedure and House Affairs, Parliament of Canada, The Use of Indigenous Languages in Proceedings of the House of Commons and Committees (Report No. 66, June 2018).

3 Australian Institute of Health and Welfare, “Profile of Indigenous Australians” (11 September 2019) . Accessed 13 August 2020.

4 Statistics Canada, “Aboriginal People in Canada: Key Results from the 2016 Census” . Accessed 14 August 2020; Statistics Canada, “Aboriginal Peoples: Highlight Tables, 2016 Census” . Accessed 14 August 2020.

5 Australian Institute of Health and Welfare, “Profile of Indigenous Australians” (11 September 2019) . Accessed 13 August 2020.

6 Australian Institute of Health and Welfare, “Profile of Indigenous Australians” (11 September 2019) . Accessed 13 August 2020.

7 Statistics Canada, “Aboriginal People in Canada: Key Results from the 2016 Census” . Accessed 14 August 2020. See also Statistics Canada, “Census in Brief: The Aboriginal languages of First Nations people, Métis and Inuit” . Accessed 14 August 2020.

8 Third National Indigenous Languages Report (2020) 12.

9 Statistics Canada, “Aboriginal People in Canada: Key Results from the 2016 Census” . Accessed 14 August 2020.

10 Third National Indigenous Languages Report (2020) 13.

11 See, eg, Aboriginal Languages Act 2017 (NSW).

12 For a more detailed comparison of the Australian and New Zealand use of Indigenous languages in Parliament, see Julian R Murphy, “Indigenous Languages in Parliament and Legislation: Comparing the Māori and Indigenous Australian Experience” Māori Law Review (July 2020) . Accessed 13 August 2020.

13 Australian Electoral Commission, “Electoral Milestones for Indigenous Australians” (22 August 2019) .

14 For more detail, see Julian R Murphy, “Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation” (2020) 43(3) University of New South Wales Law Journal 1006.

15 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 10 February 2016, 1171 (Malcolm Turnbull).

16 See, eg, Commonwealth, Parliamentary Debates, Senate, 25 August 1999, 7771 (Aden Ridgeway); Northern Territory, Parliamentary Debates, Legislative Assembly, 29 June 2005, 17 (Alison Anderson); Northern Territory, Parliamentary Debates, Legislative Assembly, 11 September 2008, 163–4 (Alison Anderson); Northern Territory, Parliamentary Debates, Legislative Assembly, 23 October 2012, 34 (Bess Price); Western Australia, Parliamentary Debates, Legislative Assembly, 17 April 2013, 112–5 (Josie Farrer); Commonwealth, Parliamentary Debates, House of Representatives, 31 August 2016, 163 (Linda Burney); Commonwealth, Parliamentary Debates, Senate, 1 September 2016, 448 (Patrick Dodson); Commonwealth, Parliamentary Debates, Senate, 14 September 2016, 944 (Malarndirri McCarthy); Northern Territory, Parliamentary Debates,Legislative Assembly, 18 October 2016, 26 (Yingiya Mark Guyula).

17 See, eg, Northern Territory, Parliamentary Debates, Legislative Assembly, 2 June 1981, 876 (Neil Bell); Commonwealth, Parliamentary Debates, Senate, 24 June 1998, 3979 (Trish Crossin).

18 Northern Territory, Legislative Assembly, Parliamentary Debates, 3 December 2015, 7617 (Kezia Purick).

19 For further detail on the recent developments in the Northern Territory see Timothy Goodwin and Julian R Murphy “Raised Voices: Parliamentary Debate in Indigenous Languages” (15 May 2019) AUSPUBLAW . Accessed 13 August 2020.

20 Note, however, that the Standing Orders do make provision for petitions and evidence before committees to be in languages other than English, and specifically Indigenous languages with respect to committee evidence. See Senate, Standing Orders 35(3), 70(3). See also Senate, Procedural Orders and Resolutions of the Senate of Continuing Effect, Order 9C; House of Representatives, Standing Orders 204(d).

21 Note, however, that some Standing Orders do make provision for paper (not electronic) petitions in languages other than English. See, eg, New South Wales Legislative Assembly, Consolidated Standing and Sessional Orders and Resolutions of the House (July 2020), 121(2); New South Wales Legislative Council, Standing Rules and Orders (5 May 2004) 69(3). For specific anticipation of guests to the Legislative Council using an Indigenous language see New South Wales Legislative Council, Sessional Orders, Resolutions of Continuing Effect and Office Holders (17 June 2020) Resolution of Continuing Effect 9(c)(ii). See generally David Blunt (ed) with Susan Want and Jenelle Moore, Annotated Standing Orders of the New South Wales Legislative Council (Federation Press, 2018).

22 See Kezia Purick MLA, Letter to Bess Price MLA (13 February 2016) . See also Northern Territory Legislative Assembly Standing Orders Committee, Report on the Consideration of Speaking Languages other than English during proceedings of the Legislative Assembly of the Northern Territory (April 2016).

23 Northern Territory Legislative Assembly, Standing Orders, O 23A (now repealed), reproduced in Northern Territory Legislative Assembly Standing Orders Committee, Report on Consideration of Reform to Standing Order 23A (Speaking of Languages other than English during proceedings of the Legislative Assembly of the Northern Territory) (August 2017) 4, also available accessed 20 August 2020.

24 Northern Territory Legislative Assembly Standing Orders Committee, Report on Consideration of Reform to Standing Order 23A (Speaking of Languages other than English during proceedings of the Legislative Assembly of the Northern Territory) (August 2017) 7.

25 Northern Territory Legislative Assembly, Further Report on Consideration of Reform to Standing Order 23A (Speaking of Languages other than English during proceedings of the Legislative Assembly of the Northern Territory).

26 Northern Territory, Parliamentary Debates, Legislative Assembly, 14 March 2019, 5682 (Natasha Fyles).

27 Northern Territory Legislative Assembly Standing Orders Committee, Report on the Consideration of Speaking Languages other than English during proceedings of the Legislative Assembly of the Northern Territory (April 2016) 10–12.

28 House of Commons Standing Committee on Procedure and House Affairs, Parliament of Canada, The Use of Indigenous Languages in Proceedings of the House of Commons and Committees (Report No 66, June 2018) 11–12.

29 Ibid 12.

30 Senate Standing Committee on Rules, Procedures and the Rights of Parliament, Parliament of Canada, Amendments to the Rules (Report No 5, 9 April 2008).

31 House of Commons Standing Committee on Procedure and House Affairs, Parliament of Canada, The Use of Indigenous Languages in Proceedings of the House of Commons and Committees (Report No 66, June 2018) 15.

32 Ibid.

33 Ibid.

34 Senate Standing Committee on Rules, Procedures and the Rights of Parliament, Parliament of Canada, Amendments to the Rules (Report No 5, 9 April 2008).

35 Senate of Canada, ‘Senate Procedure in Practice’ (Manual, June 2015) 83–4.

36 Ibid 84.

37 Canada, Parliamentary Debates, House of Commons, 4 May 2017, 10770 (Robert-Falcon Ouellette).

38 Canada, Parliamentary Debates, House of Commons, 8 June 2017, 12320–2 (Robert-Falcon Ouellette).

39 Canada, Parliamentary Debates, House of Commons, 20 June 2017, 12962 (Geoff Regan).

40 See House of Commons Standing Committee on Procedure and House Affairs, Parliament of Canada, The Use of Indigenous Languages in Proceedings of the House of Commons and Committees (Report No 66, June 2018) 3–5.

41 Ibid 29–30.

In 2018, a committee of the Canadian House of Commons conducted an inquiry into how it might better incorporate Indigenous languages in its proceedings. One witness in that inquiry gave evidence from over 15,000 kilometres away, in the Northern Territory of Australia. While many of the challenges faced by speakers of Indigenous languages in Canada and Australia are very different, it appears that each jurisdiction might have something to learn from the other – as indicated by the knowledge shared in 2018. This article advances the project of comparing the Canadian and Australian approach to incorporating Indigenous languages in federal and sub-federal parliamentary proceedings. The analysis will touch upon the symbolic importance of facilitating Indigenous language use in parliament, the practical benefits flowing from the same, and the logistical issues – including interpretation, translation, recording and funding – that arise.