TRC offers a window of opportunity for legal education

In June 2015, after seven years of collecting evidence the Truth and Reconciliation Commission of Canada released its 388-page executive summary, centred on the TRC’s 94 recommendations and written as a call to action.

Our first conversation about the report was informed by a powerful blog post by Chelsea Vowel, writing as âpihtawikosisân, where she pointed out too many public commentaries were coming from those who had not yet read the report. She writes:

“I would ask that you use this summary report to educate yourself. I would ask that you use this summary report to challenge what you think you know about these issues. I would ask that you question what is being recommended, once you have explored the rationales given.”

We took her advice, and turned to the report, beginning first with the call to action and its twin goals: to offer concrete ways to redress the legacy of residential schools, and to offer pathways for reconciliation.

Thinking about legal drafting, we read with highlighters in hand. We used colours to make visible the different actions called for: green for funding; pink for education and programing; orange for enacting, amending, repealing, appointing; red for monitoring, documenting, and reporting; blue for acknowledgements, apologies, statements, commitments. We used orange to mark out who had been asked to do something: government, provinces, churches, universities, teachers, journalists, archivists, artists, bureaucrats, nurses, health workers, landowners, coaches, and parents.

This is a broad and deep report. The 94 recommendations speak to a diversity of Canadians; and they do so with unmitigated generosity. The call to action offers multiple opportunities to work collaboratively to address the legacy of the past and make visible what the possibilities are for moving forward on the project of reconciliation.

The report is both gracious and fierce, and it engages all Canadians, settlers, non-citizens; it offers us numerous ways to find ourselves in the work.

Of course, for those of us who work in the law, attention will centre on Recommendations 27 and 28.
27. 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.
28. 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.

At first glance, law societies and law schools are being asked the same thing: to assure a common foundation of knowledge and skills in those involved in the legal system. Indeed, this demand is repeated in the report for other institutions of civil society (medicine, nursing, journalism). But the call is of particular significance for law, given the place of law in our colonial settler state. At page 215 of the executive summary, the commissioners write:

“The criminal prosecution of abusers in residential schools and the subsequent civil lawsuits were a difficult experience for Survivors. The courtroom experience was made worse by the fact that many lawyers did not have adequate cultural, historical, or psychological knowledge to deal with the painful memories that the Survivors were forced to reveal. The lack of sensitivity that lawyers often demonstrated in dealing with residential school Survivors resulted, in some cases, in the Survivors’ not receiving appropriate legal service. These experiences prove the need for lawyers to develop a greater understanding of Aboriginal history and culture as well as the multi-faceted legacy of residential schools.”

Recommendations 27 and 28 tell us there are substantive elements of the story of indigenous-settler relations that are essential for understanding what it means to be a legal advocate, law student, or lawyer today, and that gaps in existing knowledge have caused harm.

These recommendations also remind us we often talk about “legal skills” as if there is a divide between the practical and the theoretical that we all understand. These recommendations, drawn from the storytelling of the witnesses, reaffirm that inter-cultural competency, conflict resolution, fluency in human rights, and anti-racism are legal skills.

The TRC’s call for expanded knowledge and competencies (whether delivered through the law societies or the law schools) resonates with calls in the Canadian Bar Association’s Legal Futures initiative. Few people would disagree with the assertion that lawyers and clients would be served by having more knowledge, and deeper skills.

In thinking about these two recommendations, it would be all too easy to find ourselves re-hashing the well-travelled and contentious conversation of “who” determines the shape of this education, whether the federation or the law societies gets to decide what should be delivered as mandatory in legal education.

Instead, in these first moments, we urge everyone in the legal profession to read these recommendations in the context of the call to action as a whole. Both recommendations invite us to reimagine and reinvigorate the way lawyers and legal advocates continue their ongoing education.

This means holding open space for the more substantive conversations. This is the time for re-storying our understanding of legal skills, of where and how they are developed.

And on recommendation 28, we hope law schools across the country will take up the challenge to talk to each other. What educations models have been employed at universities to address the legacies of genocide, and what partnerships have been put in place to engage creatively and rigorously on those questions? What strategies, curricular innovations, and programs have already been put in place to take up the questions of indigenous laws in our multi-juridical country? What have our colleagues tried in their classrooms? What innovative pedagogies have they developed to ensure that the critical questions of colonialism are woven into all courses?

Many law schools across the country are engaged in curricular reform at the moment. We argue that the recommendation that targets what we teach at law school is a moment for looking broadly at how we offer law students diverse opportunities for engaging with the hardest questions a society can ask of itself.

The questions we hope to stimulate for our own colleagues are about what we need to better, how we approach legal education so our students emerge equipped to be the humane professionals that a life in the law demands.

Who are our students and how are they admitted? Who teaches law at our institutions of higher learning? How do our course offerings reflect the integrated nature of problems? What does dialogue in a classroom at law school look like? What is experiential learning and how does that approach to skill-building reflect the very desire the TRC demands?

Recommendation 28 calls on us as legal educators to look at how the legacy of colonialism is integrated into legal learning at all law schools in Canada. But it also asks us to think more broadly and deeply about how we train lawyers to be creative and empathic problem-solvers, working imaginatively with the inter-cultural demands of a multi-juridical country.

Law societies and law schools are being asked to rethink what it is necessary to know. At the same time we encourage our colleagues, as âpihtawikosisân so eloquently asserts, to question the recommendations.

What creative means of engagement are possible for the substantive elements of the story of the history and ongoing tensions of indigenous-Crown relations? Will offering a standalone course do the work embedded in the call from the TRC? Or do we need to do more? Is this the moment for law societies and law schools to do the kind of collaborative work that is written into so many of the challenges?

Law societies need to ensure there is ongoing training for lawyers throughout their legal education. We at law schools in Canada need to be innovative so that our classrooms offer diverse and respectful ways for students to embrace their responsibilities as humane professionals. And we need to do this work with an eye to all 94 of the recommendations.

This will offer the potential for insights and transformations that arise from new ways of perceiving and knowing, strengthening a student’s abilities for legal analysis through giving meaning and value to the questions posed along the way, at all stages of their legal careers. In the process, it will allow us to restore what must be restored, repair what must be repaired, and return what must be returned, as we play our role in honouring the truth and reconciling for the future.

Gillian Calder is an associate professor of law teaching constitutional law and family law at the University of Victoria Faculty of Law and doing research on critical legal pedagogy. Rebecca Johnson is a professor of law teaching criminal law, business associations, and legal theory at UVic law and doing research on Inuit law and film.

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