Fireworks expected at debate on Alberta regulator’s mandatory Indigenous cultural competency course

Meeting closed to the public set for Feb. 6 to debate rule obligating Alberta lawyers to take course

Fireworks expected at debate on Alberta regulator’s mandatory Indigenous cultural competency course
NVision Insight Group, Inc. developed The Path. Image credit: Law Society of Alberta’s website.

On Monday, the Law Society of Alberta will host what is expected to be a heated discussion on whether to remove a rule allowing the regulator to mandate legal education. The meeting comes after a small group of lawyers challenged an edict where Alberta lawyers are mandated to take the course on Indigenous cultural competency.

Those against the rule that allows for mandating the course said in a letter “they do not oppose [it] based on a belief that understanding Indigenous culture is unimportant.” Instead, “we oppose it because we do not believe the benchers have or should have the power to mandate cultural, political, or ideological education of any kind on Alberta lawyers as a condition of practice.”

On Oct. 1, 2020, LSA benchers carried a motion by a two-thirds majority to mandate Indigenous cultural competency training for all active Alberta lawyers. To do this, the benchers amended its rules to expand its authority by adopting Rule 67.4.

The letter that accompanies the petition signed by 50 Alberta lawyers says that rule 67.4 authorizes the benchers to prescribe “specific continuing professional development requirements to be completed by members, in a form and manner, as well as time frame, acceptable to the benchers.” It also allows the society to suspend the practice of any member “who does not comply within the specified time frame” imposed by the LSA.

Adopting this rule allows the LSA to mandate a free, five-hour online course called The Path, which teaches Indigenous cultural competency. It was developed by NVision Insight Group. The LSA set an 18-month deadline for completing the course, which ended on Oct. 20, 2022.

However, opponents of this rule argue that benchers are only allowed to mandate an education course called the “bar course” as part of the process for being admitted to the bar. They say that under rule 67.1 (3), each lawyer has the freedom and the responsibility to determine whether a learning activity qualifies as continuing professional development.

As well, under rule 67.2, the opponents’ letter says, each member must prepare and make a record of a plan for their continuing professional development (CPD) during the twelve-month period commencing Oct. 1 of each year and make a declaration no later than Sept. 30 of each year, confirming compliance with the above requirement.

Under rule 67.3, the LSA can administratively suspend each active member who does not comply with the provision of their professional development plan under rule 67.2.

“We believe this is as it should be, given the diversity of the practice of more than 10,000 lawyers who practice law in the province and the benchers’ inability to know the specific needs of individual lawyers and firms,” the letter states.

However, the letter says benchers suspended rules 67.2 and 67.3 from Feb. 20, 2020, until May 2023. It then adopted rule 67.4 on Dec. 3, 2020, and imposed a deadline for complying with mandatory cultural education by October 2022.

The letter from those opposed to rule 67.4 also says: “We believe the profession and our clients are best served by an approach to CPD [that recognizes] that individual lawyers and firms, not the benchers, are best situated to understand and address their CPD requirements and professional needs.”

In a letter sent to the province’s lawyers, the Law Society of Alberta’s benchers asked for support in opposing the resolution up for debate Monday. The letter was distributed to lawyers in the province earlier this week, along with a second document titled “Frequently Asked Questions.” It focuses on the “privilege” of self-regulation.

“This motion comes as self-regulating professions face intense scrutiny,” wrote the benchers. “Policymakers, along with the general public, are paying close attention to whether organizations like the law society are focused on the public interest or on member interests.

“If we value self-regulation, we must ensure that we continue to discharge our duties using the lens of the public interest in everything we do, including continuing professional development.”

The mandatory course is a direct response to the Truth and Reconciliation Commission of Canada’s call to action 27, which asks the Federation of Law Societies of Canada to “ensure that lawyers receive appropriate cultural competency training.” Since enacted, rule 67.4 has been used only to mandate The Path.

The Advocates’ Society said in a news release that it is opposed to the resolution. “As a regulated profession, the privilege of practising law comes with professional obligations that ensure the protection of the public. These obligations include completing mandatory [continuing professional development] education to ensure legal competency, professional competency, and that lawyers are informed about societal issues impacting the justice system.

“It is crucial for lawyers to be informed about these issues, which affect every area of legal practice, to provide meaningful access to justice and increase public confidence in the administration of justice.”

The Advocates’ Society also says lawyers across Canada should “share in the project of reconciliation with Indigenous peoples,” adding that reconciliation includes Indigenous cultural competency training for lawyers as the Truth and Reconciliation Commission suggested.

A group called Calgary Legal Action was even more vigorous in condemning the resolution to abolish the rule. A news release quoting Executive Director Marina Giacomin states: “Fifty Alberta lawyers signed their names to the letter, essentially saying they shouldn’t need to learn about the First Peoples of this land on which we are setters and guests.”

This move to abolish rule 67.4 has “sparked a debate about the value of developing cultural competency regarding Indigenous folks and creating a platform for ignorant people to spout off about the dangers of ‘wokeness’ and some garbage about the LSA’s mandatory training being akin to the atrocities perpetrated in Communist China.”

The latter refers to remarks made by Alberta lawyer Richard Song, one of the organizers in favour of abolishing the rule, whose signature is first on the petition. Song, who moved to Canada as an adult and attended law school in Alberta, told the CBC that the mandatory course and the penalty for failing to complete it remind him of his time in China.

Giacom also said that research confirms the long-term impacts of intergenerational trauma suffered by Indigenous peoples. She noted that the Truth and Reconciliation Commission identified the need for legal professionals, specifically lawyers, “to be culturally competent in serving Indigenous clients and others, because how can we help mitigate the number of Indigenous peoples incarcerated if we don’t gain an understanding of the people that are incarcerated?”

In a note from LSA CEO Elizabeth Osler, to attend the special meeting via Zoom, set for 11 am Mountain Time on Monday, those allowed to participate had to have pre-registered here by 11:00 am MT on Feb. 3. The meeting is only open to active lawyers.

The virtual meeting door will open at 10 am MT and will then automatically lock at “precisely 10:45 am, preventing further admission to the meeting regardless of whether the lawyer has registered or not.” Proxy votes are not permitted.

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