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Embracing a time for change

4Students Fall 2016 Supplement
|Written By Mervin Brass
Embracing a time for change

Last year, the Truth and Reconciliation Commission issued its much anticipated report on six years of information gathering from across Canada amassing volumes of witness statements from thousands of Indian residential schools survivors and from those involved in the system that has become what some say is Canada’s greatest shame.

Instead of releasing recommendations like most inquiries, the three-member commission released 94 Calls to Action challenging the governments from across Canada to implement the United Nations Declaration on the Rights of Indigenous Peoples and to educate Canadians on residential schools and their impacts on First Nations, Métis, and Inuit peoples.

There is a section entitled Justice that calls for sweeping changes to Canada’s justice system with two of the Calls to Action focusing on the education of law students and the training of practising lawyers.

The Call to Action #27 states: We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

The Call to Action #28 states: We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

A country in denial

Rebecca Johnson remembers getting her students to raise their hands if they had ever watched a series of John Wayne western movies she referenced. The University of Victoria law professor noticed that one of the students, who was about her age, kept raising her hand every time the question was asked. Soon, the indigenous woman, from the N.W.T., raised her hand more than 20 times.

Johnson says she uses the method to show her students about how culture teaches who are the cowboys and who are the Indians, how law is brought to empty spaces.

“I’m a bit freaked out by this because that’s a lot of westerns for anyone to see,” says Johnson. “I said, ‘Val, what the heck’s up? How can you possibly have seen so many westerns?’”

“So Val says, ‘Oh, because I went to residential school when I was young and every Saturday we got to watch movies. Every Saturday they showed us a western. So I would say I’m cheering for the cowboys and my younger brother would say I’m cheering for the Indians. So I thought, I better cheer for the Indians to support my younger brother.’”

Johnson describes the discussion as a powerful, life-changing moment.

“It was like someone had taken their fist and punched through into the back of my guts and ripped my spine forward and threw it out,” Johnson says, describing the reaction to her student’s story. “I had this visceral response to it. What? Someone my age was in residential school? In my mind, they were a thing of the early 1900s.”

Canada’s last Indian residential school closed in 1996. The reality weighed heavy on Johnson.

“When you really hit one of these moments where you can see a huge rupture in the story you believed, there’s a whole bunch of responses. For sure I went through a period of denial, went through a period of anger, went through a period of grief for sure. You just kind of have to do a lot of work to figure out how you move forward through the kind of learning that comes when you start to do this work,” she says. “As Canada, the country, there’s a lot of that kind of work that has to be done because you can’t quite easily say to yourself ‘I come from a country that has practiced cultural genocide’ without having to do some very serious rethinking of your assumptions and figure out what you’re going to do in the face of the knowledge you have.”

Johnson graduated from the University of Alberta’s law program in 1991 and was called to the Alberta Bar a year later. She then clerked at the Supreme Court of Canada before getting her Masters and PhD in law at the University of Michigan. She says like most Canadians she had assumptions that indigenous peoples were part of the past, adding that all of the myths and stereotypes were part of her upbringing.

Throughout her extensive academic journey, she was not taught anything about Canada’s indigenous history. “Nothing. Absolutely nothing. I’m from Calgary. We went to the Stampede growing up. My mother would take us to the Indian drummers, so I would see native dancing. I knew every road in Calgary with the name of a people,” says Johnson. “Like most Canadians, my education in this ground was abysmal, was absolutely abysmal.”

It wasn’t until 1996, while teaching law studies at the University of New Brunswick, that Johnson met an indigenous man named Gkisedtanamoogk who was locked in a legal challenge with Canada. He wanted to travel freely between the Canada and United States border without a passport, citing the Jay Treaty as his legal right to go back and forth as he pleased.

“There’s this feeling that I think people have, let’s call it betrayal or denial at the beginning. This can’t be, what? There’s something called a Jay Treaty. The Jay Treaty says the people of Wampanoag have the right of free passage and not to be constrained by any borders between the U.S. and Canada. How was I not taught that when I took constitutional law?”

The case forced the law professor to read the Indian Act for the first time in her career. She began reading the old Indian Acts and learning about the interference the government has asserted over an entire people with justifications that Johnson says weren’t very compelling.

“I would say law is very colonial in the way it is designed and taught. For those of us that go through law and become law professors, we’re in the same dilemma everyone else is; we tend to replicate what we inherited,” Johnson says. “The challenge is we have to disrupt what we were taught in order to replicate something different. It’s not helpful, particularly, to focus on people’s good intentions because I think people for the most part have good intentions, but so what? The system will replicate itself without us taking steps to disrupt what we know.”

Call to Action #28

“Well, it’s a pretty tall order, it covers a lot of ground,” says the University of Saskatchewan’s interim dean of the College of Law, Beth Bilson, about the Call to Action #28. “I think this law school and a lot of other law schools have, over time, incorporated a lot of classes in aboriginal law and have tried to increase the level of intercultural understanding among their students and faculty.”

In 1975, Dr. Roger Carter founded the Native Law Centre at the University of Saskatchewan to help aboriginal people prepare for a career in law. The centre started out as an independent special project within the university, eventually becoming a department within the College of Law in 1984.

Earlier this year, the College of Law released a statement outlining its formal endorsement and response plans to the Calls to Action. “The Calls to Action have prompted us to consider again whether our efforts have been adequate, and the emphasis of the Truth and Reconciliation Commission on reconciliation has refocused our discussion.”

In February, the faculty council adopted a proposal for the format and content of a class entitled Aboriginal People and the law that will try to incorporate some of the things listed in the calls to action.

The first-year law class will be offered no later than September 2017.

“The major elements of it would be some kind of introduction to indigenous legal traditions, some kind of historical piece about the legacy of colonialism, and residential schools,” says Bilson. “The decision hasn’t yet been made about whether to include in that course the property component that has until now been in the property course.”

She says the faculty is very much in support of this and is making an effort to ensure the class has the same kind of weight as other first-year classes. The college also hired an indigenous adviser to assist in developing an understanding in cultural protocols.

“I think the challenge of getting non-aboriginal law students to appreciate the importance of understanding indigenous perspectives, and understanding they are part of the fabric of the Canadian legal [system] is really a challenge. It’s something we are starting to work on,” says Bilson. “We’re starting to make a more systematic effort to identify what kind of barriers there are to that and how you introduce students to those ideas.”

Its one thing to offer and teach a class about indigenous legal history, but getting students to take the class is a challenge, according to Bilson.

“Most law students are fairly career oriented, they are looking forward to working in the legal profession, and they start to define things as some things being more important than others fairly early in their legal studies,” says Bilson. “They sometimes sort of denigrate certain kinds of courses because they think they are not helpful with their career aspirations. So, if they have their heart set on being a commercial lawyer, they tend to say, ‘I don’t need to know anything about human rights because I’m going to be a commercial lawyer.’”

The Bora Laskin Faculty of Law at Lakehead University is the only program in the world that offers two mandatory courses in the first year and one mandatory course in the second year that teach indigenous law.

The Lakehead Faculty of Law dean, Angelique EagleWoman, says the school goes well beyond what the TRC called for last summer. “The 94 Calls to Action are a blueprint for a major fundamental societal change. The calls address all the areas that matter in bringing aboriginal people and mainstream Canadians into the idea of being permanent neighbours.”

She says non-aboriginal law students will benefit greatly from the courses because they may not be aware of the kind of impact indigenous law has on their lives.

“I think this generation coming through law schools right now are concerned about equality and human rights and knowing that everyone is being treated the way that they should be,” says EagleWoman. “I have a lot of faith in these coming generations and their ability to help remedy the situations that have happened. And you can’t remedy a situation unless you fully understand it, and you have to know the history to fully understand it.”

Call to Action #27

The National Centre for Truth and Reconciliation was created to answer the challenges that face reconciliation.

The director of research for the National Centre for Truth and Reconciliation and law professor Aimée Craft says the centre will focus on two primary areas that include the continuation of telling the truth about the Indian residential school experience and reconciliation.

The national centre will collect documents that pertain to Indian residential schools. The centre will also house the thousands of witness statements from the seven TRC events in an archive and to work on active reconciliation through education, outreach, and research.

“I think our big role at the national centre is to be a resource and to centralize information and resources that people can connect to, so that they can start to understand what’s happening in other places,” says Craft. “Even being able to allow them to understand what the questions are that they should be engaging with and thinking critically about when they try to do this work.”

Craft says “What is indigenous law?” is one of the most frequently asked questions by practising lawyers.

She says she recently participated in a program with the Law Society of Manitoba where she spoke about indigenous legal traditions with judges, lawyers, and Anishinaabe legal scholars in a teaching lodge. “We don’t want to be recolonizing in spaces that we’re making, making sure that we’re not appropriating indigenous law, or trying to transform it without the proper process for indigenous law to evolve, and we certainly don’t want to essentialize it and say this is the whole of indigenous law because, like any other legal system, it’s changing and has moving parts and people that are part of the evolution of it,” says Craft. “Another big challenge is dispelling racism; we have important efforts to make there. On the far end of the spectrum, the biggest challenge is that, for the most part, the institutions of law that we privilege are still the colonial institutions that are set up through colonial structures. We need to be careful of how that will interact with indigenous law.”

The Law Society of Alberta held a plenary session last January during the Canadian Bar Association’s annual conference about how to improve legal services to First Nations, Métis, and all Albertans, writes the society’s director of policy and professionalism, Cori Ghitter, in an e-mail.

“We also invited TRC commissioner Chief Wilton Littlechild to speak at the Law Society of Alberta’s bencher meeting this past April. We believe the best approach is a collaborative one. So we’re working with the Federation of Law Societies to identify the most effective way to build skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism into our regulatory processes.

This is a complex challenge that involves many players in the legal community and many interdependent issues and won’t be addressed in a day.”

“I think the Calls to Action have had quite an interesting effect because they really have inspired people to re-examine what they are doing to make a fresh commitment to really try to focus their efforts in connection to this set of issues. So I think there is a kind of fresh energy about this,” says Bilson. As dean of the University of Saskatchewan College of Law, Bilson is also a bencher for the Law Society of Saskatchewan. “It’s easy to have a public inquiry about something and a report about something and have people read about it in the newspapers for a while, then forget all about it. I think the hope is the current state of energy around this would continue for some time so things really can be put in place that will make a real difference.”

Bilson adds the Law Society of Saskatchewan is taking a serious look at the Calls to Action.

The road ahead

“One of the comments I would make about the relationship with 27 and 28 is that there is a lot of work for lawyers to do and law schools have a lot of work,” says Craft. “I read into those two calls the obligation of judges to start thinking about how indigenous law interacts with the legal system into which they work in their courtrooms.”

Craft says the resolution of land claims and treaty rights along with lower incarceration rates among indigenous people will help measure the progress of the Calls to Action. She says another thing to consider is how people are feeling about their interaction in the legal system.

Craft stresses the importance of building relationships like they do in Anishinaabe law.

“I had a non-indigenous senior counsel who after a few opportunities to interact finally said, ‘I now understand this idea of basing your law on relationships. It has taken me a long time to get here, but now I understand why it’s so different, a different realm of decision-making, the legal players are not the same, and we need to think about broader implications, whereas law is about coming in and pinpointing something very specific that indigenous legal systems really take the broader overall view in order to make principled decision-making based on those relationships.’ To me, that was the greatest success of this work. It’s not just about convincing non-indigenous people that indigenous law exists but actually saying this is a system that might be able to offer something better than any other legal system.”

The University of Victoria’s Johnson agrees there is a lot of work that needs to be completed, adding it’s time to look within for answers. “What do we learn, not from the representation of Indians in westerns, but what do we learn about settlers from our obsession to this form of storytelling? What is it that we are telling to ourselves?” says Johnson. “So, it meant that I needed to start turning the lens around to really make the focus on settler society and on our stories and the work we as settlers have to do to be full participants in a reconciled Canada, but there is a huge amount of work for settlers to do.”

UPDATE: Correction made on Aug. 4, 2016 — Valerie Conrad lives in the N.W.T., not the Yukon as originally reported.
  • Lawyer

    Peter Best
    What a disappointing article. I thought, "Finally, I'm going to read what "indigenous law" actually is". No such luck. Just a bunch of evasions on this key element of the article. It would appear, despite all the generalities and pious statements, that there is no such thing... Merely rules and injunctions handed down by word of mouth... persuasion and force being the only way of arbitrating disputes...social outlawry or physical violence the only means of punishment for infractions of the moral code or offences against the welfare of the band or tribe- Says Diamond Jenness in The Indians of Canada. A very poor article. Why is Diamond Jenness wrong? Why couldn't your journalist have asked a few questions, instead of just dutifully transcribing the empty statements on this key element of these fine interviewees? I'm still in the dark as to what is "indigenous law".

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