Indigenous Cultural Competency for Tribunals – the Steps Ahead

Ten years ago, the Truth and Reconciliation Commission set out some recommendations for cultural competency training for lawyers, law students and public servants. The Calls to Action (numbers 27, 28 and 57) call for education/training on the history of Indigenous peoples, including 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. The Commission stated that such training would require “skills based training in intercultural competency, conflict resolution, human rights, and anti-racism”.

There were no calls to action for education or training of judges. Tribunal members were also not included – unless they were intended to be captured by the “public servants” reference. However, those tribunal members who are also lawyers would fall under the call to action for lawyers.

Law Societies across the country have adopted some form of Indigenous cultural competency training. The Federation of Law Societies in its most recent overview (as of April 2024) stated that as of 2023, five law societies require their members to complete mandatory continuing professional development programs in response to Call to Action 27 (or had plans to do so): British Columbia, Alberta, Manitoba, Nova Scotia, and the Northwest Territories. Yukon is partnered with B.C. on the mandatory training program.

The Law Society of Ontario will likely soon join this list – the Equity and Indigenous Affairs Committee has recently released a consultation document on a mandatory “Indigenous Cultural Training Course”. The committee summarized the content of the proposed course:

The Course is focused on equipping licensees with the specific knowledge and tools necessary to competently serve Indigenous clients, collaborate effectively with Indigenous counsel and parties, and accurately identify legal issues that are particularly relevant to Indigenous Peoples. The Course will enhance professional competence, ensuring that legal professionals are well-prepared to address the unique legal contexts and challenges faced by Indigenous communities, thereby promoting justice and equity in legal practice.

The Course also offers an opportunity for licensees to deepen their understanding of Indigenous rights, cultures, histories, and languages. Such training fosters a more profound respect and a shared understanding, opening avenues for respectful and meaningful relationships between legal professionals and Indigenous communities. By gaining insight into the cultural and historical contexts of Indigenous peoples, licensees are better equipped to serve these communities effectively and justly.

Although there are few details about the proposed course content – it will be based on “The Path” program developed by NVision Insight Group Inc. and adapted for Ontario licensees under the guidance of Indigenous lawyer Kathleen Lickers, with the support of several Indigenous leaders and academics from the legal community. “The Path” program is used by the law societies of Manitoba, Alberta, the Northwest Territories, and Nova Scotia.

The committee has recommended mandatory training for lawyers and paralegals who practice law or provide legal services. The training would not be mandatory for those employed but not considered by the Law Society to be providing legal services – the traditional category for tribunal members who are lawyers. The committee noted that those not practicing law have traditionally not been included in training programs or continuing professional development (CPD) requirements. The committee also concluded, without evidence, that lawyers or paralegals who are not practicing law “are less likely to engage with Indigenous peoples in a legal context”.

The committee noted that exemptions from mandatory training could be allowed based on previous education, experience or Indigeneity:

• Licensees who have pursued higher education degrees or certificates in Indigenous studies, such as an LLM or other intensive courses.
• Licensees who have demonstrated significant involvement with Indigenous communities, either through legal practice, community service or advocacy and have demonstrable knowledge of Indigenous culture, legal issues, and history.
• Licensees who practice Indigenous law.
• Indigenous licensees.

However, the committee recommended that there be no exemptions:

An exemption process could be seen to undermine the goals of the Course, which are: to equip licensees with the training necessary to competently serve Indigenous clients, collaborate effectively with Indigenous counsel and parties, and accurately identify legal issues that are particularly relevant to Indigenous Peoples. Indigenous advisors have recommended against exemptions, emphasizing that no one, regardless of their background, knowledge, or experience, can claim a comprehensive understanding of all Indigenous communities and the up-to-date legal issues of the three Indigenous groups. For instance, Canada is home to over 630 First Nations communities, representing more than 50 distinct Nations and over 50 Indigenous languages. It would be very unlikely that a licensee would have a comprehensive knowledge of them all.

The committee is seeking input on the following questions (by May 15):

1. Should the Course be mandatory?
2. Should the Course be targeted towards licensees outside of the practicing lawyer/paralegal category? If so, which categories should be included and why?
3. If the Course is mandatory, should there be any exemptions to the Course? What are your suggested criteria for exemptions?
4. Should the LSO administer suspensions for non-compliance with the Course? If not, do you have any recommendations on what compliance mechanisms should be used?
   …

The Canadian Association for Legal Ethics has already provided feedback on some of the questions. It first raised some broader concerns about the proposed course, which it described as “at best a minimum standard, most suited to licensees who currently have little or no competence in this area”. The association urged the law society to ask what an Indigenous competency requirement might look like over the next ten years, suggesting that the proposed course would be outdated soon.

The association has also raised concerns about the content of the course, stating that there are significant gaps in that course, including a lack of material on the history and lived experience of Indigenous women, enfranchisement and Indigenous life off-reserve. The association also noted the importance of any adaptation of the course avoiding being seen as intervening in contentious Indigenous politics (such as the scope of Métis constitutional rights or status under the Indian Act) and should be broadly reflective of Indigenous experiences.

The association also raised concerns about the rationale for no exemptions from the proposed course, suggesting that the committee’s rationale needed greater development and explanation. It suggested that the law society should consider an exemption for lawyers or paralegals who have already taken a similar course, such as in another province, or meet the requirements in other appropriate ways.

It is frustrating that progress on cultural competency training – first proposed ten years ago – is so slow in coming to the legal community. What is even more concerning is the perceived slowness of tribunals in providing Indigenous cultural competency training to its members and staff. I say “perceived” because there is little public information available on the status of tribunals’ adoption of such programs.

The Canadian Council of Administrative Tribunals (CCAT) has a web page listing those tribunals that have programs or practices in place that address reconciliation. Of the few tribunals listed there, the only ones who have implemented Indigenous cultural competency training are the Alberta Energy Regulator (for all hearing commissioners) and the Canadian Radio-Television Telecommunications Commission (for CRTC lawyers).

The federal government has a long list of educational programs it provides through the Canada School of the Public Service – but this training is not mandatory and it is not clear if it is available to tribunal members (who are not considered to be federal government employees).

Anecdotally, I know that tribunals have provided Indigenous cultural competency training to members – but there is no central repository of information to demonstrate how well the tribunal community has done to respond to the Call for Action. At the very least, the CCAT should encourage all tribunals to update the list on their website.

I am hopeful that tribunals across the country are embracing the challenge in the Calls to Action to train their members on Indigenous issues – but it is also important that the public (including Indigenous communities) know that such training is taking place.