The Law Schools and the Future of Indigenous Law in Canada

The recommendations of the Truth and Reconciliation Commission have presented Canadian society with a set of urgent ‘calls to action.’ Two in particular require a response from the law schools, Recommendations 27 and 28, quoted in full at the end of this blog post – although, as I argue below, our concern should extend between the particular terms of those recommendations.

Law schools are earnestly considering what they ought to do to respond to those calls. At least four schools (Lakehead, Thompson Rivers, Ottawa (Common Law) and my own, UVic) have posted preliminary responses on their websites. Individual scholars (such as my colleagues Gillian Calder and Rebecca Johnson) have publicly embraced the TRC’s call and have begun to articulate actions that law schools should take. I suspect that the rhythm of discussion and action will increase when the Fall term begins.

At times like this, I am reminded of the poignant and wise remarks delivered by His Honour John Joe, member of the Penelakut First Nation and Judge of the BC Provincial Court, at the conclusion of a conference on the use of Indigenous Law in Coast Salish Traditions held in conjunction with the Cowichan Tribes in October 2010. The conference explored how law and governance might be approached differently if one took Indigenous laws seriously. It was held in accordance with Cowichan protocols. John Joe’s remarks were given in his capacity of witness in those proceedings.

After saying that the conference was one of the most important he had been to, he said:

“I don’t know if any of you were here – I know about ten or fifteen years ago Judge Campbell and Tommy Sampson spearheaded a series of meetings similar to this… And I remember being at the S’amuna’ bighouse when it was full of judges and full of probation officers and corrections officers and social workers. And that did have an impact. But it was personality-driven so it was short-lived and it was all forgotten again. And I think that that’s the real issue we have to face today…

I think that the process that we would have to go through to try and identify what our laws are would go a long way to assist us in ‘living the treaties’ as Tom Berger puts it. But I think that has to begin now. And as our relations from Chehalis said, it’s not something that we can do alone. We need everybody here. … We all have to work on this. And I don’t think there is any time to waste really. We have to continue what’s happened now.”

There are many times I have thought of those words over the five years since that conference. We have all been to inspiring conferences, full of enthusiasm, where, in the aftermath, we found no way to translate that enthusiasm into institutionalized action. Then, ten years later, we have another conference. I worry that we may repeat the same phenomenon of enthusiasm and little staying power in the aftermath of the TRC report.

As John Joe indicates, and as the TRC recommendations emphasize, changing our institutions is the key to staying power. But what kind of change?

Recommendations 27 and 28 set out specific elements that should form part of the answer: a mandatory course in Aboriginal peoples and the law with the minimum content the TRC sets out, as well as skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism. Those recommendations draw our attention to the knowledge and skills that all law students should obtain before commencing their careers.

But the recommendations don’t stop there. Recommendation 50, the lead recommendation in the section on “Equity for Aboriginal People in the Legal System,” calls upon the federal government, in collaboration with Aboriginal organizations, “to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.”

That recommendation calls urgently for institutional structures that can deepen our knowledge of Indigenous legal traditions, develop our comprehension of Indigenous institutions, and explore how those traditions might be worked with and built upon today. It calls upon us to recognize Indigenous legal traditions as sources of normative insight in their own right, possessing traction within Indigenous communities today, which deserve our focused attention.

That recommendation too requires law schools to respond. We need to bring to Indigenous laws the kind of seriousness that we bring to non-Indigenous law, so that Indigenous law students can learn to reason with their traditions with the rigour and soundness that we require all our students to bring to non-Indigenous law. They need to have skills to know how to access their law, understand it, work with it, assess its multiple interpretations, and function within its institutions. And we and they need to develop modes of translation between Indigenous and non-Indigenous institutions, so that non-Indigenous institutions can relate intelligibly to Indigenous modes of governance and structures can be established that mediate sensibly among our various legal traditions.

Right now, there is not a law school in the country that fully achieves that aim. We give our students an excellent training in the Common or Civil Law (as we should). We also teach them the Canadian law with respect to Indigenous peoples and, in the best programs today, introduce some dimensions of Indigenous legal traditions. But in that last respect we give them, in almost all cases, the barest of introductions.

Whether we like it or not, for our Indigenous students the result is often an education of displacement. Until we turn that situation around, it will be hard to claim that we have learned the lessons of the residential schools experience. We won’t have an educational system that assists students in manoeuvring among both Indigenous and non-Indigenous legal cultures. We won’t be developing the skills necessary to pursue constructive relations within the legal and governmental institutions of Canada.

But there are promising developments on which we can build. In particular, there are now a significant number of Indigenous scholars in law schools across the country who have become conversant with their legal traditions, who are continuing that apprenticeship with humility, dedication and rigour, and who are contributing to the process of reimagining the Canadian legal landscape. These scholars form a cohesive network, collaborating on initiatives, stimulating each other, sharing their approaches.

They are beginning to suggest how governance structures might be developed that are anchored within an Indigenous community’s own law, so that decisions made by those entities stand a much better chance of retaining the allegiance of the people of that community. They are exploring responses within Indigenous legal traditions to severely damaging interpersonal conduct, so they can fashion means for addressing that conduct that have legitimacy within the communities. They have worked with peoples to identify principles of resource conservation and allocation so that those principles can inform water policy, land-use planning, environmental controls, and structures of business organization in Indigenous settings. The examples could be multiplied. They are very exciting.

They are also immensely practical. Let me give the example of my colleague Val Napoleon, who holds our Law Foundation Chair in Aboriginal Justice and Governance. She has founded the Indigenous Law Research Unit at UVic. ILRU originated in a program co-sponsored by the Truth and Reconciliation Commission and the Indigenous Bar Association, funded by the Law Foundation of Ontario. She and her graduate student Hadley Friedland developed a methodology through which they and their collaborators work with Indigenous communities to identify resources within the communities’ legal traditions for addressing the challenges they face.

Their programs have been hugely successful, documenting processes, procedural principles, an ordered progression of decision-makers, remedial approaches, and substantive principles that can shape responses today. They have been so successful that even now, when the original funding has concluded, communities are coming to them to hold workshops, often bringing their own funding. Our problem is how to scale up the effort and its funding base to meet the demand. Not a bad problem to have.

Moreover, those initiatives are expressly conceived as a stepping-stone to a still more ambitious vision.

Some ten years ago, my colleague John Borrows, now holder of the new Canada Research Chair in Indigenous Law at UVic, proposed the creation of a dual-degree program in the Common Law and Indigenous Legal Orders. “Imagine if we could do for the Common Law and Indigenous Law,” he said, “what McGill does for the Civil Law and the Common Law.” He and Val, supported by many others, are now working concertedly to realize that vision.

Of course, Indigenous law has to be approached differently from the Common Law and the Civil Law. The planned program needs to grapple with the orders as lived in particular Indigenous peoples, not an abstract notion of pan-Indigenous law (if that exists). That means the program has to give students tools for working with a broad range of traditions.

And in Indigenous societies that are generally not organized as states, legal knowledge is held in communities and distributed among many individuals. That means that much of the program has to occur in communities, engaged directly with those knowledge-holders and exploring the procedures by which knowledge is shared, tested, different interpretations reconciled, deliberations conducted.

That intensive engagement stands a chance of fulfilling the promise sketched by the TRC. At the very least, it creates the kind of institutionalized forum for continued, serious, reasoned engagement with Indigenous ideas of legality that John Joe urged upon us.

It is a revolutionary project, one that needs to happen and that could reverse the displacement that has typified our legal relations. If you want to learn more, if you want to help, contact us at UVic or contact an Indigenous legal scholar near you.

—Jeremy Webber, Dean of Law
University of Victoria

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TRC Recommendations 27, 28 and 50:

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.
29. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.

For the complete list, see: http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf.