The Supreme Court’s decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham has left me scratching my head a bit. It overturned an Alberta Court of Appeal decision that seemed quite sensible to me. (One of the things that got me thinking about “double dipping” – since it was one of the respondents’ arguments.)

The case arose because the Cunninghams, long-time residents of an Alberta Métis settlement, were removed from the settlement membership list after they registered as Indians. The Cunninghams had sought to be registered under the amended Indian Act in order to get access to health care benefits – particularly the drug plan – not available to Métis people.

Before 1985, Indian women who married Métis men lost their Indian status and their children were not considered to be Indians either. In 1985 the Indian Act was amended to reinstate these women and their children. Until then, they had no choice but to live off-reserve. That was the situation for the Cunninghams who lived in a Métis community for all or most of their lives — even before it became a settlement under the Métis Settlements Act (MSA). They had always lived as and identified themselves as Métis.

The facts reported in the case suggest that this was a case of community in-fighting. The former council of the settlement excluded only the Cunninghams on the grounds of their Indian status. There were other settlement members who had registered as Indians who were not excluded. (There was even evidence that in some Métis settlements 1/3 of the members have Indian status.) When a new council was elected it sought to reinstate the Cunninghams but the Registrar said he couldn’t reinstate them because s. 75 of the MSA doesn’t allow Métis with Indian status to obtain settlement membership – but that they could reapply for membership. Although they continued to live on the settlement they could not vote on settlement matters or access settlement programs.

The Cunninghams didn’t think they should have to reapply for membership and sought a declaration that ss. 75 and 90(1) of the MSA was discriminatory and breached the Charter. The chambers judge found it didn’t, the Alberta Court of Appeal found that it did. Finally, the Supreme Court found that it did not breach the Charter.

The Court of Appeal found that the MSA was discriminatory. It emphasized the arbitrariness of excluding only the Cunninghams. It emphasized their life-long attachment to the settlement and its doubts about how excluding life-long Métis could protect the culture. It found that the objectives of the MSA included preservation and enhancement of Métis culture and identity, but saw exclusion of people who identify as Métis from participating in the community as antithetical to the legislative objectives. The Court saw the exclusion from the settlement of these Métis who had acquired Indian status as creating unique disadvantages including lack of access to culturally-based programs and ability to participate in governance, and being considered “less Métis” similar to the issue faced by off-reserve Indians in Corbiere.

The Supreme Court, on the other hand, found that the exclusion of status Indians from membership in a Métis settlement does not constitute discrimination. It emphasized that the MSA is an ameliorative program that will necessarily confer benefits on one group over others, that is intended to preserve and enhance Métis culture, identity, and self-government, and that it was enacted following negotiations between Métis and the Alberta government. The Court stated that:

The object of enhancing the identity, culture and self-governance of the Métis as a s. 35 group, of necessity, must permit the exclusion of other s. 35 groups since an essential part of their unique identity is that they are “not Indian” and “not Inuit”.

The Court acknowledged that some people identify as both Métis and Indian, but found that didn’t negate the distinction between the two groups. It found that significant numbers of members with Indian status would compromise the distinctive Métis identity – and self-governance. The Court said:

For example, Indians who already enjoy the right to hunt off-reserve may have little interest in promoting the right of Métis to hunt outside settlement lands. The same may be ventured for other benefits and privileges. Because the Indian Act provides a scheme of benefits to status Indians, ranging from medical care to housing to tax-free status, status Indian members of Métis settlements may have less interest in fighting for similar benefits than Métis without Indian status.

The Métis have put a huge effort into establishing a separate identity from other Aboriginal people. However, although it is common ground that Métis have an identity separate from both their Aboriginal and their European forebears, the “European” mainstream society’s influence on or interference with Métis identity doesn’t seem to be an issue, either for the parties who negotiated the terms of the legislation or for the Court. The example given above seems to acknowledge the similarity between Métis culture and Indian culture, i.e. hunting as a way of life. However, in the example quoted, Aboriginal self-governance is reduced to a struggle against mainstream governments for recognition of “benefits and privileges” (not rights).

It also assumes that individuals involved in the struggle for Aboriginal “benefits and privileges” (or what I would characterize as Aboriginal rights) are working for their own self-interest. In fact, most Aboriginal people working for their rights are motivated more by the interests of the future generations. Because those reinstated to status under the revised Indian Act have limited ability to pass on their Indian status, the Cunninghams and others like them would have a strong motivation to work for future generations of Métis since (at least prior to this decision) their descendants would more likely have been Métis than Indian. Now they will probably not be either.

In fact, there are two big threats to Aboriginal identity: governmental regulation of Aboriginal identity, whether it is Métis or Indian, and “mainstream” interference with culture (i.e. interference from the direction of Métis “European” origins). Let’s be realistic. The Métis language, Michif, is not threatened by vast numbers of Métis abandoning it in favour of Cree, or any other Aboriginal language. Aboriginal languages, and other aspects of Aboriginal cultures, are threatened by the influence of the English language and mainstream cultural practices, not “other” Aboriginal cultures. Yet the MSA doesn’t deal with that threat. It only deals with the supposed threat Indians and Inuit pose to Métis identity and self-governance.

In the interest of preserving Métis identity and self-governance the Cunningham decision has the potential to reduce by 1/3 the number of people able to assert Métis rights and identity. The people who will no longer be recognized as Métis have been Métis all their lives. They had a claim to both Métis and Indian identity because they had one Métis parent and one non-status Indian parent. But they have made a choice to claim their Indian status and therefore cannot be Métis any longer.

Can we really take seriously the claim that the fewer lifelong Métis allowed legal recognition of their Métis identity, the stronger the Métis culture will be? Or is it really about avoiding double dipping, and about the gradual extinction of both Métis and Indian peoples?

*Thanks to Marilyn Poitras for suggestions, encouragement and for the title.

I never had the opportunity to take Law and Economics, and almost everything I remember from undergraduate economics courses I could have learned at Father Guido Sarducci’s Five Minute University. In spite of my lack of knowledge about the subject I’m beginning to suspect that whatever you’re thinking about, it’s important to follow the money.

I doubt that thinking most Aboriginal issues are about money, rather than constitutional law principles, international law principles, or human rights principles is any kind of insight. But I wonder, are there foundational legal principles about money? For example, is there a legal principle about avoiding “double dipping” that is a counterpart to something like avoiding conflict of interest?

I’ve been thinking about “double dipping” lately because I’ve been looking at the fallout of a long-standing worry that Aboriginal people might benefit as both Indians and Métis. And avoiding “double dipping” is suggested as a valid objective in this context. Originally it was dealt with by the Indian Act which provided that a person who received half-breed lands or money scrip, or their descendent, is not entitled to be registered as an Indian. That provision disappeared with the 1985 Indian Act amendments allowing for the reinstatement of women who had “married out” under the previous versions of the Indian Act, and their children. Thus, since some of them would have married Métis men, for a while there was the potential for people to be both Indian and Métis (which seems sensible if one parent was Indian and one was Métis). However, the prohibition on being (or benefitting as) both Indian and Métis has reappeared, not in the Indian Act, but in the Métis registry requirements in Saskatchewan, for example, and in the recent Cunningham case reviewing legislation governing Alberta Métis Settlements. 

Though neither directly deals with “double dipping”, conversations in the community suggest that people see them as related to concerns about “double dipping” for Aboriginal people. Is this because it is a general principle that double dipping is bad, or is it just prohibited when there is some sort of authority or policy reason to prohibit it? It seems that double dipping is not a problem at other levels. For example, the province of Saskatchewan seems to be paid twice for the education of Indian children enrolled in provincial schools.

I don’t know if this is standard practice across Canada, but in Saskatchewan when you register your kids for school you are asked to indicate whether the child is an Indian and the name of the band, etc. As a harried, tax-paying mother, I dutifully provided the information. (Though I wondered why it was required, at that stage in my life I never had the energy to find out.) 

I now have it on good authority that the province bills the federal government for every Indian child who is enrolled in provincial schools. Every year, once provincial schools have submitted their enrollment numbers, the province allocates to the school board about $10,000 for every student enrolled in the school. And for every Indian child enrolled, the province claims almost $7,000 from Indian Affairs.

This might make perfect sense for students who were resident on the reserve, because their families would not be paying property taxes in the school division, and might not be paying income tax to the province. However, I’m told that the province claims reimbursement for every Indian child enrolled in a provincial school, no matter where their residence is. So the provincial government double dipping – taking the taxes Indians who live in the city pay in property taxes, income taxes and sales taxes, just like other city residents. Their taxes are the source of funds to support schools within the city and province. Then the provincial government bills the federal government for Indian students whose education has already been paid for by taxes in the same way as other children’s education.

The double dipping – once from taxes, and again from the Indian Affairs budget – doesn’t give Indian children a better education than the other students in the classroom. In fact Aboriginal students are much more likely to drop out of school than non-Aboriginal students, so the double funding of their education is not benefitting them, but it is benefitting someone else.

I wonder: what is the total dollar amount paid by DIA to the province for Indian students living off reserve? I wonder what better use there could be for this money than subsidizing the provincial school system in ways that don’t benefit Aboriginal students. And I wonder why issues involving double dipping and Aboriginal people yield such different results.

Racism is like alcoholism — you can’t deal with it until you admit that you have a problem with it. Somehow the same people who might agree that Canada is filled with systemic discrimination, in virtually every institution or sector imaginable, also seem to believe that no one is a racist. (Well, maybe those boot-wearing, skinhead white supremacists, but no one else.)

No one in government, education, law, health-care, business, or social services even wants to hear the words “racism” or “racist” – they are just too harsh. How then can we deal with the harsh and deeply entrenched reality of racism if we dare not speak its name?

Over the past few months I have been shocked when a variety of people in a variety of institutions have been unable to cope with a mention of racism. They have an apparently visceral reaction to the word, which results in a range of responses from dismissing it as nonsense to labeling it an extreme allegation.

In my experience the average person is able to talk about discrimination – maybe even racial discrimination. My theory is this: discrimination is an acceptable topic of conversation because it’s a little more inclusive, and many more of us have had to deal with discrimination than have had to deal with racism. Since white people have faced discrimination on the basis of gender, family status, disability or religion, we can talk about discrimination. But the white majority rarely experiences racism – they and the institutions they have created are the perpetrators of racism, and they don’t want to talk about it. If you want to clear the room, just say the R word. It’s much more effective than the F word!

And maybe reference to the F word is relevant. Once long, ago, I lived in a university residence that was home to a fairly mixed population including typical university-aged students and some middle-aged female instructors. We all ate in the residence dining room, sharing tables and conversation without age or gender barriers. The F word was used liberally by university students, a habit disapproved of by some of the middle-aged instructors – and one was more vocal about it than most. She often made remarks like: “Can’t you tell us the story without using THAT WORD?” Finally, one night a student turned to her and said, “Mary, just go to your room and stand in front of your mirror and say THAT WORD to yourself a hundred times until the shock value wears off.”

I don’t know if she ever did, but maybe that’s what we have to do with the R word: Stand in front of our mirrors and say “racist” a hundred times until the shock value wears off. Then maybe we can start having meetings and introduce ourselves: “My name is Ruth and I’m a racist, and this is what I’m doing about it.” (I don’t know enough about 12-step programs to propose a complete program to recover from racism, but I think just making that start would be a step in the right direction. People more in the know than I assure me that other steps would be relevant as well: apologizing and making amends were mentioned.)

Our society is racist and our institutions are racist. We don’t want to talk about it, but until we talk we can’t do anything about it. Maybe we think that human rights codes have been in place long enough that it’s not an issue anymore, but racism persists. People who are quick to recognize discrimination on other grounds pooh-pooh claims of racism, but I see it often. For example, when a white man with a high GPA and LSAT score screws up and fails out of law school we never think “Wow, we’ll never admit one of them again!” However, when an Aboriginal student screws up and fails out of law school I have been told that there needs to be a review of the Aboriginal admissions policy (though oddly there is no need to review the policy about academic support!).

There are lots of studies about what needs to be done about for, or to, Aboriginal people (or the Aboriginal problem) in any given context: justice, education, etc. Now we need to focus the telescope or microscope on the people who normally do the studying. We need to look at, and understand, the racism that the country and all its institutions were built on. We need to look at what all of those institutions did, and are still doing, to Aboriginal people. We need to focus on racism and how to eliminate it. We need to be able to say, and hear, the R word, and then do something about it.

Because international law supported European assertions of sovereignty over Indigenous territories beginning in the 15^th century it’s appropriate for international law to deal with the issue of Indigenous rights now. The current situation of Indigenous peoples was created by international law. European nations created an international law that allowed European powers to divide up and colonize the rest of the world and profit from it. Europe exported enough of its population to at least some of the colonies in the Americas and the Pacific that when they were decolonized, Europeans or their descendants continued to govern on the basis of democratic concepts. The non-Indigenous populations of Australia, Canada, New Zealand and the United States – the most affluent of those former colonies – have more to lose than anyone else if, through the recognition of Indigenous rights, historic inequities arising out of Europe’s international law are redressed. Thus it’s not surprising that when the United Nations General Assembly voted on the Declaration on the Rights of Indigenous Peoples (the DRIP – an unfortunate acronym if ever there was one) in September 2007, only Canada, Australia, New Zealand and the United States voted against it. Their votes against the Declaration stood in contrast to the 143 states voting in favour. (Just for the record, eleven states abstained, and 34 were absent for the vote.) Since then all four of the nay-saying states have reversed their positions – Australia in 2009, and New Zealand, Canada and the USA in 2010. So now we’re all in support of the DRIP – or are we?

When New Zealand endorsed the DRIP in April 2010 it was difficult to know if this was a cause for celebration or not. Some said that it changed everything for Maori in New Zealand, and others said that it changed nothing. The New Zealand Prime Minister seemed to be in the latter camp, saying “we already implement most provisions contained within it.” 

Last fall, all sorts of people (including AFN Chief Shawn Atleo and Carlos Mamani Condori, Chair of the UN Permanent Forum on Indigenous Issues) praised Canada for finally, on November 12, 2010, endorsing the United Nations Declaration on the Rights of Indigenous Peoples. So it seems to have been cause for some celebration. However the celebration lasts only as long as you don’t look too closely at what Canada said at the time. In fact, Canada’s was a fairly faint endorsement.

In its statement of support for the UNDRIP, Canada emphasized that the Declaration is an aspirational document, a non-legally binding document that does not reflect customary international law nor change Canadian laws. The longest paragraph in the statement reiterates Canada’s concerns with various provisions of the Declaration which concerns “are well known and remain”. Apparently the only thing that has changed since its initial vote against the Declaration is Canada’s confidence that “. . . Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” It says that the Canadian Constitution (not the Declaration) “ . . . will continue to be the cornerstone of our efforts to promote and protect the rights of Aboriginal Canadians.” Canada said, in essence, that it can now support the Declaration because it is convinced that its endorsement of UNDRIP will not change a thing. And just in case it might change something Canada was sure to state that the Declaration is only aspriational and doesn’t represent customary law. It’s just window dressing.

There is at least a slight difference between Canada’s endorsement of UNDRIP and the USA’s, which was announced on December 16, 2010. The American announcement also emphasizes existing American law and refers to the fact that UNDRIP is not legally binding or a statement of current international law. However, it also says that the declaration has both moral and political force, that it expresses the aspirations of both Indigenous peoples and States, and that it

. . . expresses aspirations of the United States, aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws and international obligations, while also seeking, where appropriate, to improve our laws and policies. (My emphasis.)

The American approach is definitely oriented toward the status quo, but it at least admits that there might be room for improvement in laws and policies regarding Indigenous rights. Canada’s statement does not.

The American statement seems to better (though not perfectly) reflect the general understanding in international law of the force of a Declaration. Although Declarations, as resolutions of the General Assembly, cannot make law, they often represent or come to represent customary international law and then are cited as authoritative documents. According to the UN Commission on Human Rights, declarations are rarely used, “relating to matters of major and lasting importance where maximum compliance is expected.” A declaration creates “a strong expectation that Members of the international community will abide by it.” By voting against it, Canada, New Zealand and the United States were trying to avoid the need to comply with it. Their statements of “endorsement” suggest that they are still, with the possible exception of the US, hoping to characterize the status quo as sufficient to comply with UNDRIP.

And by Nkasi Adams

[Here at the University of Saskatchewan I have the pleasure of supervising graduate students working in the areas of Canadian Aboriginal law and international Indigenous rights. Last year Nkasi Adams, the first Indigenous woman to graduate from law school in Guyana, joined us at the University of Saskatchewan to pursue an LL.M. focussing on the tensions between Indigenous peoples’ rights and international measures to deal with climate change. I’m happy to have her provide most of the ideas and information for this month’s column. It’s something we don’t know enough about here in the north.]

We have probably all heard about ways that climate change will threaten Indigenous peoples — by causing rising sea levels, less sea ice, and so on. However we don’t hear much about the ways that preserving forest as a means to deal with climate change threatens Indigenous peoples. Shouldn’t saving standing forests be a good thing for forest-dwelling peoples?

Reducing Emissions from Deforestation and Degradation in Developing Countries (REDD) is a recent addition to the United Nations’ climate change mitigation agenda. Because years of hard bargaining failed to produce a policy architecture that adequately addresses the complexities of climate change, the international community shifted its attention to the strategy REDD represents. It aims to dramatically cut CO2 emissions from deforestation and degradation in developing countries by creating an incentive mechanism that will pay developing countries to manage standing forest. Currently backed by the United Nations, the World Bank, and the United Kingdom, as well as prominent individuals like Prince Charles, REDD is touted as a strategy which could have a revolutionary impact on global efforts to mitigate climate change.

The treatment of Indigenous peoples’ rights in ongoing REDD negotiations, however, raises questions about whether the international community is serious about protecting Indigenous rights. Only three years after the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly, there are questions about whether the international community is willing to give effect to Indigenous rights in the overall design and implementation of REDD.

REDD has significant implications for Indigenous peoples. Vast portions of the remaining standing forest in developing countries which are currently targeted for conservation and protection under REDD are home to Indigenous peoples. They are often the poorest and most marginalised peoples in developing economies, lacking basic human rights and heavily dependent upon the forest for both their physical and cultural survival. Therefore any change in the condition or management of tropical forests, particularly a change as enormous as REDD, will have a direct impact on their livelihoods and culture.

While it may be agreed that forest conservation is in everyone’s interest, and certainly in the interest of Indigenous communities which are vulnerable to both climate change and deforestation, schemes such as REDD could actually have negative consequences for Indigenous peoples if their rights are not taken into account in designing the program. Past experiences have shown Indigenous peoples’ interests and forest conservation policies have not tended to fit on the same agenda. (This is not limited to 2010 and developing countries. Think: wilderness protection schemes, like national parks in Canada, that have ejected Indigenous peoples from their traditional territories rendering them homeless and prevented from using their traditional lands for subsistence.)

Canadian experience in wilderness protection provides an example of forest conservation polices and laws that have generally been hostile to, and systematically biased against, Indigenous peoples because they have denied Indigenous peoples control over their territories and access to life-saving forest resources. These policies favour elites and commercial interests who are in a position to enjoy the national parks or make a profit from operating businesses within them. Similarly, Indigenous peoples in developing countries have suffered grave human rights violations (including expulsion of traditional territories, forced relocation and the use of force to deny them access to resources needed for subsistence) under conservation schemes which purport to protect the forests, wildlife, or wilderness but not the people who have co-existed with them for centuries.

REDD aims to achieve massive conservation of standing forests by providing lucrative financial incentives to encourage developing countries to keep those forests standing. Unless Indigenous rights are specifically addressed in the course of developing such a massive conservation scheme there will be serious consequences for Indigenous people, perhaps consequences that are even more devastating than other environmental protection schemes. As with previous conservation schemes (such as Dumoga-Bone National Park in Sulawesi, Indonesia; Korup National Park in Cameroon; and Kaieteur National Park in Guyana), it is likely that Indigenous peoples’ ability to use the forest will become further restricted as governments impose strict rules on forest usage to guarantee the flow of funds into the country.

In addition, assigning a substantial monetary value to forests may provide an incentive for governments to wrest forests from Indigenous communities or to ignore the fact that their claims to traditional territory have not been recognized or settled. Put plainly, this could set the stage for another land grab. These risks underscore the importance of securing Indigenous peoples’ rights in the design of the program, including property rights, the right to give and withhold consent to REDD activities, as well the right to participate in the overall design and implementation of REDD.

The most recent statement coming out of COP 16 in Cancun just a few days ago does make reference to UNDRIP, to Indigenous knowledge, and to the need to “promote the full and effective participation of Indigenous people and local communities.” These references have come about mainly because of continued advocacy of by Indigenous peoples who are concerned about how their rights will or will not be protected in the context of measures responding to climate change. The document is, of course, not a binding treaty – it merely “notes”, “urges” and “requests” that states involved in programs to reduce climate change consider the economic and social impacts of measures to mitigate climate change. It affirms that measures taken should be “based on and guided by the best available science and, as appropriate, traditional and Indigenous knowledge”.

Although Indigenous rights and Indigenous knowledge are mentioned, there is still a fairly clear hierarchy of science before Indigenous knowledge, and development before maintaining Indigenous livelihoods. Despite references to UNDRIP and Indigenous rights, there is a strong feeling among Indigenous peoples in developing countries that without full recognition and protection of their rights, REDD will only serve to further marginalize Indigenous peoples and deny them use and control of life-giving forest resources. Why would they think otherwise? Wilderness conservation in Canada excluded and displaced Indigenous peoples. Wildlife conservation in Africa did the same. Before Indigenous people will let down their guard, developed countries, and the governments of developing countries which will be paid to keep their forests standing, need to do at least three things: 1) demonstrate clearly that they will recognize and respect Indigenous land rights, 2) include Indigenous peoples in the scheme governing use of standing forests, and 3) ensure that Indigenous people whose traditional territory is the forest benefit from the financial proceeds of REDD.

When it comes to climate change strategies, developed countries are exporting their problems to developing countries. Giving developing countries economic incentives to maintain standing forests promotes interference with the lives and livelihoods of peoples who have traditionally lived in the forests and depended on forest resources. Such programs need to have safeguards for Indigenous rights built in to all aspects of operations to avoid developed countries exporting their treatment of Indigenous peoples along with their emissions problems.

The Program of Legal Studies for Native People (PLSNP) was founded in 1973 to encourage Canadian law schools to admit Aboriginal law students to law school, and to encourage Aboriginal students to study law. As far as anyone could tell, at that time you could count the number of Aboriginal lawyers and Aboriginal law students in the country on your fingers. After nearly 40 years, has the need for the PLSNP disappeared?

I’d say there are at least two answers to that question. First, I’d say that it is impossible to know, because no one keeps track of the actual number of Aboriginal lawyers and Aboriginal law students. My second answer would be that, although we don’t have access to all the numbers, based on the numbers I do have access to, I could not say that Aboriginal people are even close to being proportionally represented in law schools and in the legal profession.

Since the program began in 1973, about 1300 students have completed the PLSNP and about 1000 of those have enrolled in law school. About 750 of them have graduated from law school and about 65 are currently enrolled in law school. We also know that some Aboriginal students have enrolled in law school without taking the PLSNP, but we do not know how many.

There are approximately 2700 first year places in Canadian common law schools. Aboriginal people account for about 4% of the Canadian population. If 4% of students in law schools were Aboriginal there would be 108 Aboriginal students in first year law across the country, or about 300 to 325 Aboriginal students in law school. Based on anecdotal information, we are fairly sure that the actual number is significantly less than that.

The PLSNP was established to increase the number of Aboriginal people in the legal profession. According to Federation of Law Societies of Canada statistics for 2007 (the last year for which there are statistics on the FLSC website), there were about 72,000 members of law societies outside of Quebec. If Aboriginal people were proportionately represented in the legal profession, about 4% of law society members would be Aboriginal, so there would be almost 3,000 Aboriginal lawyers across the country.

In the absence of hard statistics, based on anecdote and experience, we estimate that there are about 1300 Aboriginal law graduates in the common law provinces. Again based on anecdote, we know that significant numbers of Aboriginal law graduates do not practice law, and are probably not even included in the “non-practicing” statistics for the law societies since significant numbers do not even article. Thus, there is still a long way to go to see Aboriginal people proportionally represented in law schools and in the legal profession. Even if all 1300 graduates were practicing law, we would still not have reached the halfway point on the road to proportional representation.

So proportional representation of Aboriginal people in law school and in the legal profession has not yet been achieved, although there has been some progress toward the goal. The PLSNP, as a means of increasing the numbers of Aboriginal students in law school and preparing them to succeed in law school, still has a role to play. 

Now there has to be a focus on something beyond the simple numbers for Aboriginal admission and graduation. For example, in Saskatchewan we need to be concerned about making sure that we are admitting Cree speakers to law school since there is a Cree court in Saskatchewan. (I have tried to learn Cree and can vouch for the fact that it would be much more effective to recruit Cree speakers to law school than to teach a person with a law degree to speak Cree!) If we admit high numbers of Aboriginal students to law school, but none of them are Cree speakers we won’t be doing enough. There are no doubt other examples that call for looking beyond the Aboriginal/non-Aboriginal numbers to ensure that we are working to make sure that Aboriginal people are not only proportionally represented in law school and the legal profession, but also adequately and appropriately represented.

Unforeseen circumstances have landed me in Campbell River, British Columbia for a few days. I’m trying to make the most of this detour by taking in whatever Campbell River has to offer. One of my better-spent days included a visit to the Campbell River Museum which has substantial displays devoted to the First Nations of the region, their history, material culture, place names, stories, and the colonization attempts by the Spanish and British. I know in general terms how that turned out – the British were the successful colonizers. And I know all to well what that meant for First Nations people, but it is always useful to be reminded, and to see it in the context of other First Nations.

The museum demonstrates what colonization meant for the First Nations of (what is now called) Vancouver Island and the islands adjacent to it. The history and impacts of colonization are all too similar across the continent, but the Campbell River Museum does a better job of documenting it than many. First, it documents competition among European powers to see which would have the opportunity to exploit the new-to-them territory. Contact with First Nations people was almost incidental to this process. The British and Spanish sent ships to the area to map the territory and name the places they mapped, ignoring the fact that all the places already had names. They also ignored the fact that there were settlements in the territory, and simply produced maps showing the territory as vacant.

Next, the museum documents the decimation of First Nations populations by European diseases. The display indicates that only one in ten First Nations people survived exposure to the diseases brought to their territory by European traders and colonizers. I realized that Europeans first viewed the territory as vacant (despite contact with the First Nations); then the territory became nearly vacant because of the spread of their diseases. Although such population loss represented a huge threat to First Nations societies and cultures the museum demonstrates that the cultures did survive and that their languages, stories, and traditions continue, at least to some extent, today.

The museum is more explicit than most in documenting colonization along with exhibiting First Nations “cultural artifacts”, both ancient and contemporary. In addition to invasion and disease, the museum documents the intent to destroy “Indianness” by sending generations of First Nations children to residential school. It also demonstrates that, while settlers where given 160 acres per homesteader, whole First Nations communities were given only five times that. Visitors learn that by the early 1900s, First Nations (which, in the 1700s, had title and sovereignty over all of British Columbia) had reserves totaling only 1/3 of 1% of the territory of British Columbia. We also learn that some Europeans thought even that was too much, despite the fact that very little of British Columbia is covered by treaty, and there was no other compensation for loss of First Nations territories.

After this strong display of First Nations history and colonization I experienced a strong disconnect when I moved on to the displays on the settlers. One display documents the fact that a prominent settler who developed all sorts of businesses in the area donated the land for several local institutions, such as a school, church and the like. Here we lose track of the idea that this is First Nations’ land. Although Aboriginal title in the region is outstanding, when we start looking at the story of a European individual, we learn that he can donate land. No doubt he had legal title to the land he donated. And that is where the justice issues arise.

The Canadian legal system, like the museum display, doesn’t know how to cope with this disconnect. Although we can recognize that there was, and maybe still is, Aboriginal title, it is so much easier to understand the title of settlers whose names we know, and to recognize the ways they have dealt with “their” land. Although Canadian courts now acknowledge the existence of Aboriginal rights and title, it seems they turn themselves inside out to limit Aboriginal rights and title so they don’t interfere much, if at all, with the titles and rights of the settlers, or give First Nations any “advantage” over other Canadians. It’s clear by any indicator that all sorts of Canadian institutions, legal institutions among them, have succeeded in “not advantaging” First Nations. For example, according to Indian and Northern Affairs Canada, First Nations in Canada currently have reserves totaling approximately 2.6 million hectares, or .2 percent of the total land area of Canada. Apparently there is still support for the sentiment that .3 percent really was too much land for First Nations.

As director of the Program of Legal Studies for Native People (PLSNP) I have several roles. One is advising prospective Aboriginal law students about how they might best prepare for the Law School Admissions Test (LSAT). This often leads to a discussion about why they have to take it at all since it is not created for Aboriginal Canadians or demonstrated to be a valid measure of skills for Aboriginal Canadians. (I can’t argue with that – when I asked for statistics about how LSAT score correlates with success in law school for Aboriginal Canadians, I was told that would not be possible since Aboriginal Canadians are not a statistically significant group among those who take the test.)

Regardless of its validity for this group of students, it is something that they just have to do since the LSAT plays an important role in law school admissions, and is required of almost anyone who applies to law school in Canada outside of Quebec. It is relevant in since it tests some of the skills needed to succeed in law school: reading comprehension, logical reasoning and analytical reasoning. It doesn’t purport to test all of the skills relevant to success in law school. Law students certainly need skills beyond these three, but there seems to be some agreement that reading skills and logical thinking skills are important. However, Aboriginal students often find that reading comprehension and logic skills do not help them understand some of the cases that are particularly important to them.

The PLSNP offers a property law course to Aboriginal students who have been accepted to Canadian law schools in the summer before they begin first year. We are currently in the midst of the 38^th PLSNP in which Aboriginal students from across Canada are studying real, personal and Aboriginal property law. In the 1970s and early 1980s the PLSNP offered a survey of the courses usually covered in first year law. One of the changes students sought at that time was inclusion of course content that was directly relevant to them as Aboriginal people: Aboriginal law. The PLSNP’s effort to respond to that need finds today’s PLSNP students (who come to us with reading comprehension and logic skills duly tested by the LSAT) studying Aboriginal property, and thus trying to deal with the logic of the Aboriginal law concepts developed (mainly, but not exclusively) by Canadian courts.

PLSNP students are thus trying to read and understand concepts like this one: the purpose of s.35(1) of the Constitution Act, 1982 is reconciliation of the pre-existence of distinctive Aboriginal societies with the assertion of Crown sovereignty. However, the relevant time period to identify Aboriginal rights is the time prior to contact with Europeans, rather than the time the Crown asserted sovereignty.

Similarly, PLSNP students have to try to use their analytical abilities to understand that, in order to claim an Aboriginal right under s.35(1), First Nations must prove that the right claimed demonstrates continuity with the traditions, customs and practices that existed pre-contact. They have to do this in spite of the fact that they are all too painfully aware that the government outlawed significant aspects of First Nations culture and traditional practices for decades. They also know too well that the government prevented transmission of First Nations language and culture from generation to generation by forcing Aboriginal children to attend residential school, so the requirement to demonstrate continuity doesn’t seem logical.

Of course, all of this logical reasoning about Aboriginal rights has to occur in the context of the doctrine that First Nations sovereignty was diminished by European “discovery” of their territories which gave the European Crown paramount title. Under this doctrine the Aboriginal title which arises because of First Nations’ prior occupation of the territory is a burden on the Crown’s underlying title, and not vice versa.

Sound reading comprehension skills and good logical and analytical reasoning skills do not help Aboriginal students understand the cases in which these doctrines and principles are outlined. Perhaps the most relevant skill for Aboriginal students studying Aboriginal law is some sort of odd combination of suspension of disbelief and critical analysis. Luckily, the PLSNP has been able to find talented First Nations or Metis law professors to teach the Aboriginal component of the PLSNP property course. They have been developing those skills for years and are the best equipped to teach Aboriginal law students the skills which though not tested by the LSAT are needed to deal with that area of law that Aboriginal students perceive to be most illogical.