Aboriginal Law Skills

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 38th 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.

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