Reconciliation and Sentencing Law: Spending some time with Sharma?

The Supreme Court of Canada released its reasons in R v. Sharma on November 3, 2022. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/19540/index.do

Here is the case history provided by the SCC:

In 2016, the respondent Ms. Sharma, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). Ms. Sharma sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found that the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1(b), and he dismissed the s. 15 challenge to s. 742.1(c). Ms. Sharma was sentenced to 18 months’ imprisonment, less one month for pre-sentence custody and other factors.

Ms. Sharma appealed and, with the Crown’s consent, also brought a constitutional challenge to s. 742.1(e)(ii) of the Criminal Code. A majority of the Court of Appeal allowed the appeal. Sections 742.1(c) and 742.1(e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held that the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

The outcome of the case is that the majority (Brown, Rowe, Wagner, Moldaver, and Coté) found there to be no violation of either s.7 or s.15(1) of the Charter. The dissenters (Karakatsanis, Kasirer, Martin and Jamal) came to the opposite position, finding violations of both.

The case is likely to generate lots of discussion, given the quite stark differences in how the majority and dissent (5-4 split) understood the challenges in front of them. Perhaps this will come as no surprise, given the number of interventions in the case (here is a link to the 23 facta filed in the case – Facta on Appeal). There is some powerful written and oral advoacy in this case, and there is much in here that could be profitably drawn into the law school classroom. Here is a quick link to the webcast of the case: Webcast of hearing in Sharma)

On November 7, there was a “Pop-Up Conversation on Sharma” at UVic law, with Professors David Milward, John Borrows, Patricia Cochran, Patricia Barkaskas and Rebecca Johnson, and Sentator Kim Pate and UVic law student Michael Davidson (2L in the JD/JID program). The point was to provide an introduction to the case, followed by a series of short (3-5 minute) interventions, attempting to start a conversation about the case, and about how to understand next steps forward in terms of addressing the crisis of over-incarceration. [On that front, here is a news item on the report of Correctional Investigator Ivan Zinger, released mere days before Sharma.]

For the purposes of #ReconciliationSyllabus, we gather here some of the resources from that event, to share with folks who are trying to figure out how to be responsive to the TRC Calls to Action in engaging with both the majority and dissent in this case.

First, here is a link to an audio recording of the Pop-up-Panel.

Rebecca Johnson (Introduction to the Case)	00:00
David Milward	09:15
John Borrows	12:20
Patricia Cochran	18:00
Kim Pate	22:45
Patricia Barkaskas	28:15
Michael Davidson	36:30
Questions & Conversation	39:15

Second, here is a link to the handout prepared for the conversation.

sharma-handout-rjDownload

Third, here is a link to the background powerpoint prepared by Rebecca Johnson for use in the Criminal Law classroom [it is open access, so feel free to use, modify, change, as you will…. and to disagree!]

sharmaDownload

The audience also took up the relationships between litigating and legislating for change, pointing to Bill C-5, which attempts to reduce the number of ‘excluded offences’ in order to create the discretion needed to build sentencing practices that respond to the TRC calls to incorporate Indigenous centred approaches to justice.

There is so much to be said about this case, particularly the majority and dissent engage in quite different ways with the challenges ahead of responding to and reversing the complete crisis of Indigenous over-incarceration in Canada, and particularly the over-incarcernation of Indigenous Women.

We know there are many resources out there to help us, in our law schools, engage with the challenges ahead. We would love for folks to attach to this post any additional resources (articles, links, teaching materials, ideas) in order to begin changing either the discourse, or the legislative framework or the shape of our conversations (both in our classrooms, and in the broader public).

Reflecting on the Word Warriors Approach to ‘Reconciliation and Indigenous Justice’: A PhD Students Perspective

Reconciliation and Indigenous Justice: A Search for Ways Forward is one of my new favourite books—and not just because Dave is my PhD supervisor.

I’m really on the same page when it comes to the need to revitalize Indigenous legal orders to support a transformative reconciliation. My dissertation is a law revitalization case study with the Qalipu Mi’kmaq for the same purpose. I’ve approached my work through more of the ‘politics of recognition’ camp that Dave describes, calling for the need to turn away from the state and inward towards community to revitalize laws and values to transform our relationships.

Dave has really been encouraging that give further consideration to Dale Turner’s (2006) word warrior approach, and after reading this book I totally understood why. Dave has convinced me that in the context of ending Indigenous over-incarceration, it is possible that we can convince Canada to take interest in supporting Indigenous justice that resembles restorative justice. Dave highlights how this is necessary for a reconciliation that will support equitable nation to nation relationships which reflects the calls of the Report of the Royal Commission on Aboriginal peoples (RCAP) 1996.

1. First, Dave highlights that Canada is responsible for Indigenous over-incarceration, as it is directly related to the violence perpetuated by the residential school system and its legacy, as found by the Truth and Reconciliation Commission in 2015.

Dave integrates a variety of data to highlight that residential schools planted the seed for Indigenous over-incarceration by directly and violently harming students mentally, physically, sexually, and culturally. Here he highlights how violence is a cycle deeply rooted in residential school experiences, that continues to be perpetuated as a result of intergenerational trauma. Yet in the current criminal justice system, Indigenous peoples are being penalized by the state for being caught in cycles of violence that were perpetuated by the state in the first place.

It’s important to keep in mind that residential schools are just one part of the violent colonial project that began more than 100 years ago in British Columbia, and 200 years ago on the East coast where my Mi’kmaq ancestors are from. It’s important not to lose sight of how the very foundations of ‘discovery’ and terra nullius are imaginary concepts rooted in the same paternalism and racism that reinforces current institutions, which disproportionately incarcerate Indigenous peoples, especially Indigenous women.

Indigenous women are vastly over represented in the criminal justice system as both victims and offenders. According to a recent Statistics Canada report, almost 50% of women in prison are Indigenous. Indigenous women and 2SLGBTQQIA folks are also twice as likely to be victims of sexual and physical assault than non-Indigenous women.

But these Indigenous women and gender diverse peoples are more than statistics. They are sisters, mothers, grandmothers, cultural guardians, friends, ancestors, leaders. They are the inspiration for Indigenous women’s activism that has pressured the Canadian state to pursue the TRC and National Inquiry into MMIWG2S+.

In my preliminary PhD investigations, I’m finding that Indigenous women are in fact leading law revitalization in Mi’kmak’ki.

And Indigenous women’s activism is directly responsible for structural change. When facing racist and sexist Canadian policy, Indigenous women like Sharon McIvor and Sandra Lovelace inspired widespread support from within their own communities, and Indigenous communities across the country that pressured the Canadian government to address discrimination within the Indian Act and other state policy. The strength of grassroots community activism is powerful.

And with that being said, I support Dave’s calls that community, spirituality, and culture are powerful tools for Indigenous justice that must be engaged for a reconciliation that honours equal partnership between Canada and Indigenous peoples.

2. Through the actions of a word warrior, Dave shows exactly why Canada should take self interest in engaging Indigenous justice to end Indigenous over-incarceration and contribute to reconciliation.

I mentioned earlier that I typically ascribe to one of Dave’s counter argument, that Glen Coutlhard (2015) outlines as the ‘politics of recognition’. Coulthard explains how hierarchal, unilateral forms of state recognition are dedicated to recognizing and misrecognizing Indigenous peoples in whatever way supports colonial agenda.

While I remain wary of the politics of recognition, as does Dave, he convinced me of his approach here because turning away from the state to reject their recognition will not convince the state to have self interest in issues affecting Indigenous communities. Only word warriors who strategically strive to create space for Indigenous legal orders can convince Canada that they have a shared interest in Indigenous Justice.

And Dave convinces Canada of their shared interest in a variety of ways, using empirical evidence to highlight that Indigenous specific preventative and corrections programs, as well as justice models resembling restorative justice can be substantially more cost effective long-term, can better address a variety of sentencing goals, and can yield positive results on recidivism.

Since Canada’s settler-colonial institutions are is built to protect it’s capitalist enterprise, I think that speaking in terms of the economy/finances is one of the most effective ways of convincing Canada to have self-interest in correcting Indigenous over-incarceration.

In The Reconciliation Manifesto, the late Arthur Manuel (2017) refers to relating to Canada in terms of financial and economic impact as speaking in ‘the colonizers language’. Time and time again, Canada has proven to favour their economic goals and put money before climate, public safety, and Indigenous rights through pipeline projects.

If we can speak in the colonizers language of capitalism, and prove that Canada’s proverbial pockets will hurt more in the long run without Indigenous justice, which Dave has clearly demonstrated, it makes a very convincing argument to encourage Canada’s self interest in Indigenous justice. Dave shows that justice reinvestment is worth the long term solution to indigenous over-incarceration, and additionally serves as a social reparation for reconciliation. If they are given adequate funding and support, Indigenous specific programs and justice models can contribute ending Indigenous over incarceration, and to a reconciliation that will support equitable nation to nation relationships through revitalization of Indigenous legal orders.  

Dave does an excellent job at highlighting the risks and rewards of Indigenous justice, and he does not expect Indigenous justice to resolve over-incarceration overnight. He is specific in that there are two phases of achieving reconciliation as inspired by the TRC’s calls to action: the first is a transitory stage that may take decades of work while creating culturally appropriate correctional programs, and the second stage is marked by revitalized, independent Indigenous legal orders and indigenous administered justice responding to Indigenous needs from Indigenous contexts. The latter requires the Canadian state to shift towards a horizontal framework built on equal partnership with Indigenous peoples in a nation to nation relationship.

Dave’s book serves as empirical evidence that Indigenous justice, rooted in culturally and spiritually relevant Indigenous specific programming, can positively respond to Indigenous over-incarceration and support genuine reconciliation according to calls from RCAP 1996 and the TRC—further demonstrating the power of community, spirituality, and culture to influence structural change.

Can word warriors convince Canada to change its institutions and constitutions beyond sovereign colonial hierarchy? I believe there’s only one way to find out. And it begins here, with calls for reinvestment towards Indigenous justice.

Bibliography

Coulthard, G., & Alfred, G. (2015). Red skin, white masks : rejecting the colonial politics of recognition / Glen Sean Coulthard ; foreword by Taiaiake Alfred. University of Minnesota Press

Manuel, A., Derrickson, R. M., & Klein, M. (2017). The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy. James Lorimer and Company Ltd., Publishers.

Milligan, E.P. (2022, October 14). Indigenous women account for almost half of Canada’s female federal inmate population. World Socialist Website. https://www.wsws.org/en/articles/2022/10/14/gcli-o14.html

Milward, D. L. (2022). Reconciliation and Indigenous Justice: A Search for Ways Forward. Fernwood Publishing.

Turner, D. (2006). This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy. University of Toronto Press

Author Meets Reader: Seeds, Word Warriors and Hope: A Conversation with David Milward’s Reconciliation and Indigenous Justice: A Search for Ways Forward.

On October 20th, UVic’s Centre for Indigenous Research and Community-led Engagement (CIRCLE) hosted a launch of Dr David Milward’s most recent book, Reconciliation and Indigenous Justice: A Search for Ways Forward (Halifax: Fernwood Publishing, 2022). The author introduced his book, and then had the chance to respond to comments made by three readers, Sabrina Lamanna, Gillian Calder, and John Borrows, moderated by Heidi Kiiwetinepinesiik Stark. The following are Gillian’s comments.

This is an important book.[1]  Not just in the story that it has to tell, but in the way that it tells its story.  The voice that is used, the audience that is imagined, and the resource that it provides for students, impacted communities and others, people who are living with or learning about all of these things, reconciliation, Indigenous justice, prison abolition, intersocietal legal orders, ethics and morality, restorative programming, spirituality, principles of sentencing, and about the importance of a search for ways forward.

It takes on many of the most difficult issues that we face as a shared society, and it does so with grace, with careful research, and with hope.  Thank you, David.

Some thoughts.

As we have heard from David, Heidi and Sabrina so far, the aim of this book is to draw a clear connection between the experience of residential schools and the grave problem of over-incarceration of Indigenous peoples in Canada today.  To trouble the ways that standard punitive policies of the Canadian state continue to be applied to Indigenous peoples living with the social legacies and enduring harms of residential schools; and then to carefully offer concrete means to repair relationships, further harmony in the context of conflict, address alternative approaches to punishment, and offer imaginaries of accountability, responsibility and safety.

Part of what enables David to accomplish his aims here – lofty as they are – is the decision he makes, early on, to approach the issues and questions of reconciliation as a Word Warrior.  Drawn from the work of Anishinaabe political scientist, Dale Turner,[2] Word Warriors are academically trained Indigenous philosophers who act as bridges and advocates for Indigenous people within a democratic state.  They are mediators, conduits, people with the capacity to move between languages, across dichotomies, and within ways of thinking about the world.  As Inuvialuit legal scholar Gordon Christie has written, they must be able to take up, deconstruct and continue to resist colonialism —  but they are also skilled in their ability to engage the legal and political discourses of the state.[3]

And in response to those who call for resistance, who see the work of change as only possible through the realm of direct action, David tells us that it is as a Word Warrior that he is likely to be the most persuasive within corridors of power, to effect change both with respect to Indigenous peoples themselves, as well as in the realm of criminal justice policy; to align – as he argues – Canadian self interest with Indigenous aspirations.  Lofty goals.

So, who is this book for?

Is it written for the young Inuk, who on Truth and Reconciliation Day, ventured into one of Victoria’s most beloved independent book stores, and while perusing the display of Indigenous authors, poets and artists, finds themselves followed and surveilled?  This gentle, yet fierce young person, who knows the realities of intergenerational trauma because it is written on their body, who experiences the harms of dislocation and displacement, raised outside of community, but who does not find themselves in conflict with the law?

Or, is it written for the JD/JID student, struggling albeit with an open-heart with the learning of colonial laws, with the pace of a University institution whose rhythms seem discordant with the needs of community, the land, with spiritual practice, and being so far away from home?

Or is the intended audience our political leaders, the ones that told us – running for office — that if elected they would implement all 94 of the TRC’s Calls to Action, notwithstanding that calls place responsibility on us all, not just on the shoulders of government?

It is the magic of the Word Warrior, it seems, to be writing with a foot in each world, for a range of audiences, all the while planting seeds.  Greek poet Dinos Christianopolous has famously written:

What didn’t you do to bury me?
But you forgot I was a seed.[4]

The metaphor of seeds holds particular emotional sway, the idea that those who have suffered immensely might help bear the fruits of justice later on has taken on a global resonance, over time and space to many forms of movement, and actions. David is effective, particularly at the outset of his book in showing how residential schools, through their legacies of abuse, planted the seeds of intergenerational trauma in Indigenous communities. He then painstakingly follows each sprout, through case law – where he teases out judicial recognition of residential school factors that have played a role, in the eyes of the court, of the accused’s conflict with the justice system; and ultimately over-incarceration. And while it is painful, he moves through questions of substance use, mental health, racism, cultural losses, deficient parenting, intimate partner violence, sexual abuse, poverty, family policing, FASD and the intersections that co-exist, all to enable a way forward.

And it is the way forward that breathes life into this text.  That enables a deep engagement with the painful injustice of incarceration levels in Canada that are not only way out of step with populations, but at odds with the ways of knowing and being of peoples in prison, at odds with the Indigenous legal orders that ground communities in transition.

So turning away from noxious seeds, David begins to build a narrative of reconciliation, resurgence and revitalization.  A story of what might grow from investment in community, from critical programming, both inside and outside of prison, from reallocation of resources.  He takes us into conversations about restorative and transformative forms of justice – of Indigenous justice – about what it will actually take to repair and strengthen relationships.  He weaves in conversations of power, of family relations and gender imbalances.  And he uses his Word Warrior armour to bridge colonial laws to Indigenous legal orders; to questions of safety, responsibility and care.

So with an audience that is polyphonic, with a voice that aims to be mediating, and with a politics that reminds us of how unacceptable is the status quo, David keeps the questions of prison abolition close to the surface, and offers a work that has exceptional value, most notably, I would assert, for people learning law.

Let me conclude these thoughts with a turn to pedagogy, and to the value of this text to the classroom.

It is as a medium of teaching and learning, that I think this text is the most valuable.  It pays due attention to techniques of persuasion in its form and structure as well as its substance.  It is deeply researched, drawing on case-law, academic texts, reports and studies, and the important architectural texts of our time – RCAP, the TRC, Murdered and Missing Indigenous Women and Girls.  It gives us Gladue from the inside out, and shows why it isn’t enough.  And it takes us, its students forward – but not just to show us that Indigenous justice is possible – but that it has critiques, as do those critiques.

You can easily imagine students taking up the avenues for change that David has carefully laid out, into their clinical placements, their fields schools in community, into directed research projects, into art.  You can see them contemplating what it means to be a Word Warrior; and where they might in contrast but with authority turn to other forms of action.

And it is hopeful.  It reminds students that law is a powerful tool, a scythe in a garden full of weeds; a sprinkler for parched soil, fertilizer for ideas that need more nurturing to break the surface.  It reminded me of folk singer Ani DiFranco’s anthem –  that every tool is a weapon if you hold it right[5] — while telling us that words are often the most powerful tools available, particularly to people dedicated to teaching and learning all forms of law.

I have questions – things I would love to know more about.  Given David’s work in Cree Law I wondered about how the book might end differently, if grounded in transsystemic analysis or teaching, in the laws of a community for whom both of these questions resonate, the seeds of intergenerational trauma and the realities of over incarceration.  And in places I wondered whether the story plays out quite differently for men, than it might for women and non-binary folk. I wanted to know a bit more about how the solutions proferred might be different for women in prison; for families at home.

This is a beautiful book. Overwhelming in places, but overarchingly with a narrative that self-determination is very likely to be, as one reviewer writes, a pathway for doing justice better in Canada.  Thank you, David.

---

[1]              David Milward, Reconciliation and Indigenous Justice: A Search for Ways Forward (Halifax: Fernwood Publishing, 2022).

[2]              Dale Turner, This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy (Toronto: University of Toronto Press, 2006).

[3]              Gordon Christie, “Response to This is Not a Peace Pipe: Towards a Critical Indigenous Philosophy by Dale Turner” (2011) 10(2) APA Newsletter 7.

[4]              Dinos Christianopolous, The Body and the Wormood (1960-1993), discussed on-line at: https://www.philipchircop.com/post/663226193115529216/we-are-seeds-in-1978-the-greek-poet-dinos.

[5]              Ani DiFranco, My IQ: https://www.streetdirectory.com/lyricadvisor/song/cljae/my_iq/

Law & Culture: Drawing Texts, Masks and Blankets into the Law School Classroom

One of the big questions for me over the past years (thinking about our Law School TRC obligations to learn and teach about Indigenous Law) has been the relationship between law and culture. Or maybe more specifically, how to talk about these relationships in the law school classroom.

In this post, I share some materials I tried out last year, materials that I think could be drawn on in a number of different classroom contexts. I pause for a moment to thank my colleague Professor Bob Howell, who (following a number of fun hallway conversations) invited me to explore some questions with the students in his Cultural Property class. Below are some notes on the three things we drew into the classroom:

1. Law vs. Culture (in Legislative Texts)
2. Legal Orders in Conflict: A BC case involving the sale of Hupacaseth Masks
3. Legal Orders in Collaboration: Some comments on the Stewardship Agreement related to the Witness Blanket.

1. Law vs. Culture (Legislative Texts)

We began with questions about ‘law’ and ‘culture’ as important key words. Because the students in Bob’s class were working closely with both UNDRIP and UNDRIPA (new legislation affirming UNDRIP, and setting out a framework for its implementation in Canada)), I looked at those two texts more closely than I would otherwise have done, and got stuck on drawing comparisons between the two sections below. The column on the left (from UNDRIPA) makes an assertion about UNDRIP (the column on the right), appearing to simply draw it into the newer text. But the two sections are not quite identicial, and the differences can open space for a discussion about the key concept of ‘the legal’ and ‘the cultural.’

First, the text highlighted in green directs our attention to the VERB: in 2007, the verb points us at RECOGNITION of inherent rights. in 2021, the verb gives us an emphasis on the importance of this recognition.

The black portion of the text is identical in each version: the need to respect the rights of Indigenous peoples, including rights to lands territories and resources.

The purple text, which is the same in each, tells us where those inherent indigenous rights come FROM: “political, economic, and social structures”. In short, “structures” of the kind that are often seen as distinct from law (here, you can imagine the plethora of courses titled “Law and Economy”, or “Law and Society” or “Law and Politics”. ) At this point, one could generate class conversation about the ways in which law is or is not assumed to be distinct from these ‘meta’ structures.

The text continues, with the section highlighted in blue; this adds adds additional sources from which the rights of indigenous peoples might derive. Here, we move to culture, spirituality, history and philosophy. There is again room for discussion about the ways these forces (or accretions?) are important places for conversation and engagement.

What is particularly interesting to me is the text in red, present in the 2021 version and absent in 2007: “and legal systems”. Here, there is room for significant discussion in the classroom about the ways that this absence/addition makes visible the ways in which the law/culture divide can be deployed. What seems to be at stake here is how we understand these two important key words, as well as the assumption (2007) that Indigenous peoples have culture and NOT law.

From the perspective of legislative drafting, it is also interesting to think about the ways that the words “and legal systems” are added into the 2021 version ‘as if’ they had been present in the 2007.

The comparison of these two sections in the classroom needn’t lead to any conclusions (ie. which is the right or wrong way to approach the questions). The goal might simply be to help visibilize the different ways law and culture are discussed in these texts, and to remind the class that the relationships of law and culture might take different form in different legal orders.

2. Legal Orders in Conflict: The Case of the Cedar Masks

The second thing we talked about in class was a 2013 case in which a pair of Hupacasath cedar masks were (wrongfully) sold in an on-line auction. The nugget of the story is this: one person in a family (“X”) sold these masks to an online auction house. The auction house relied on the existence of the grandmother’s Will to determine that X had good title. That is, they presumed that the masks fell into the category of ‘household possessions’ that had been left to X under their grandmother’s will. The extended family disputed X’s claim, asserting that X was only a steward for the masks that were collectively owned. The auction house continued to rely on the will, and finalized the sale of the masks to an anonymous buyer. Unable to retrieve the original masks, the family held a public ceremony in which X was stripped of their name and title. A new mask was carved, and at the ceremony, the songs and dances that travelled with the older masks were attached to the new mask.

In the classroom time, I talked to the class about having used this case in the criminal law classroom, to ask how you would address the question of the mask having been wrongfully sold according to both Canadian Law and Hupacaseth Law. First off, even within Canadian law, how would the problem to be dealt with if it was understood as a Criminal Law problem (theft, fraud, possession of stolen goods). How would it be dealt with if it were understood as a problem of Property Law or of Wills & Estates? Further, is a mask (which has songs and dances that go with it) to be best understood as “property”, or also to be understood as related to practices of “governance”? You can also take up the question of Conflicts of Law? Whose legal order is to apply when people from multiple legal orders are engaging with the same object?

There are a cluster of newspaper articles you can look at to get a sense of the story, as well as a sense of how it has been talked about in the media:

• https://www.theglobeandmail.com/news/british-columbia/bc-families-search-for-sacred-cedar-masks-sold-at-auction/article5789775/
• https://bc.ctvnews.ca/sale-of-sacred-masks-prompts-request-to-alter-law-1.1122073
• https://indiancountrytoday.com/archive/sacred-first-nation-masks-sold-to-highest-bidder
• https://www.todayinbc.com/news/family-fights-sale-of-aboriginal-ceremonial-family-masks/

In her work on Indigenous Property Law, Val Napoleon has posed a number of really helpful questions we can start asking (particularly when it comes to working with societal and cultural production):

1. What kind of property is this?
2. Who is the owner?   
3. What is the underlying purpose of the property?  
4. What is the legal harm or injury? 
5. What are the range of historic and present day remedies?

These are great questions to give to the students as they engage with the case. It really helps make visible the power of focusing on QUESTIONS that students might start asking (rather than focusing only on answers to questions). It can provide a richer scaffold for discussion about the strategies for working forward. In the classroom context, we likely spent 20 or so minutes in a rich discussion of the challenges (and of the ways that the problems in this case could help the students think about the international law dimensions of challenges in our own backyard). NOTE: I am currently trying to write the story of these masks in a chapter for an upcoming book on Indigenous Intellectual Property. If you want to see a draft of that article, click here.

3. Legal Orders Working Together: The Witness Blanket Stewardship Agreement

The third thing we looked at in class was “The Witness Blanket, a monumental piece of work by Cary Newman. The Witness Blanket, which is comprised of more than 900 objects and stories, was produced in response to the Indian Residential Schools Settlement, and is currently lodged at the Canadian Museum for Human Rights in Winnipeg. There is a really great website, on which you can see images of, and take a tour of the The Witness Blanket. Also, here is a link to another post on this blog that provides a number of teaching resources for drawing the Witness Blanket into the law school curricula.

One of the advantages of talking about the Witness Blanket next was to make space for looking at more transformative and collaborative responses to the kinds of difficulties made visible in the masks case. This gave us a chance to focus not only on the punitively focused judgement of the past (ie. what went wrong, who was guilty, etc), but also on more positive forward loooking mechanisms to provide joint responses even in the face of different legal orders and different understandings of things.

One of the particularly astonishing things about the Stewardship Agreement is that, rather than having a “choice of law” clause, it makes explicit that it is to be governed by TWO legal orders!

This clause generated some interesting conversation, as we discussed the possibilities that emerge where the focus of the agreement is not on the rights of those signing, but on the responsibilities of those signing to the substance of the agreement, in this case, their joint agreement to care for something (the Blanket itself is the only entity with ‘rights’ under the agreement, the other clauses deal with obligations and responsibilities).

In class, we spent our time primarily with the written text of the Agreement. Depending on the time you have available in class, Here is a screen shot of (my annotated copy of) the first page of the agreement, which asserts that participation in ceremony (culture? law?) is necessary to the full realization of the agreement. That is, the divide between law and culture is made porous (or rather, the law IN culture is made visible).

The agreement makes BOTH 1. written agreements (the stuff of our contracts classes) and 2. cultural ceremony (generally not taken up in law school classrooms) central to the business of doing legal work together. It does NOT presume that written agreements belong only to settler citizens, and ceremony only to Indigenous citizens, but provides a scaffold through which people from different legal orders can draw the tools of their law into engagement with eachother.

We spent a bit of time talking about the oral/ceremonial part of the agreement. Having been present at the ceremony, I could tell them that the experience was affectively powerful. But, to make visible to them that ceremony can be powerfully experienced for people outside of our law community, I have also pointed people to a blog post by my mother, Arta, who also came along to the ceremony: in that post, they can get an ‘outsider’ report on the experience, as well as see someone outside of the law school doing the work of witnessing, and sharing with others both what they saw, and their experience of ceremony.

In our conversation about the oral ceremony, we also discussed the requirement of the written agreement that there be a renewal of the oral ceremony and feast every 4-5 years. This pattern of repetition can be a particularly helpful model in the context of agreements involving “INSTITUTIONS”. If one keeps in mind that the Directors of CMHR (or most other organization or governmental body) can completely change every 4-5 years, you can see that there is a problem of MEMORY. If all your directors change or move on to new jobs, then you are left with a group of folks who do not carry affect laden memories from the power of ceremony. By organizing for a regular return to ceremony, you can create the conditions for keeping the agreement alive with Institutions and Institutuional Actors in ways that are not possible where you rely completely on the (important by not affect laden) written text.

In the context of the classroom, this also opened space for a conversation about student engagement with a variety of ceremonial contexts (both Indigenous and non-Indigenous), and the ways that we can better engage with the ways that these cultural/legal practices generally incorporate a rich tapestry of sounds, visual fields, movements and practices of witnessing.

There you go. It would be great to hear about things others are trying in their classrooms, or about other resources you have drawn on to think through the productive relationships of law and culture.

LAST NOTE:

If you want to do more work with the students on how ‘law’ may be differently structured in legal systems and legal orders (while still being ‘law’), then take a look at Val Napoleon’s article, “Thinking About Indigenous Legal Orders.” In Dialogues on Human Rights and Legal Pluralism, edited by René Provost and Colleen Sheppard, 229-45. Dordrecht Heidelberg New York London: Springer, 2013.

Some Business Associations Materials (‘LaRue’ meets ‘Big River First Nation’)

February 8, 2022 business, law, Pegadogy Indigenous Law, LaRue

[AUTHOR NOTE: I wrote this post early last year at the end of teaching my first iteration of Transystemmic Business Associations in UVic’s JD/JID program. I posted it to my personal blog so I could re-access resources when needed, but it seems to me it is worth re-sharing here, for those who might be thinking about drawing conversations regarding Indigenous Law into the Business Associations/Societies Law classrooms this year. Think of it less as a fully formulated teaching plan, than a set of resources and ideas around one way of getting at linkages in Canadian and Indigenous legal orders related to governance. Feel free to use, adapt, extend, critique or comment!]

One of the challenges in the Business Associations context is how to teach in ways that connect to the broad context in which economic work is situated (ie. not only in corporate boardrooms, but also in small businesses, local cooperative movements, and community-innovations). Another of the challenges for all law schools at this point is how to develop teaching resources that engage with Indigenous law, and Indigenous legal orders. In this point, I offer a few materials at the intersection of these two questions in the context of “LaRue Investments” and “Big River First Nation v Agency Chiefs Tribal Council Inc“. 2020 SKQB 273.

big-river-first-nation-2020skqb273Download

Let me back up to say that, over the years, I have drawn on some of the challenges that have emerged in the context of the family-owned closely-held corporation (LaRue Investments Ltd) that is the ‘owner’ of the Shuswap lands that have been such an important part of the growing up experience of so many in my extended family.

“The Lake” (as we call it) is at the centre of important identity-forming moments for so many of my siblings and cousins. It has also been at the centre of a series of family conflicts that have resulted in nearly 20 years of litigation, involving schisms between people. And so (given that much of the documentation is public), I have sometimes used moments of family history in the classroom, as a way of walking students through a ‘small-scale-but-story-rich’ case study to explore how the concepts we study in the statutory materials have application in many different locations. It is also a way of making visible that the phrase ‘business is business’, often hides another refrain, which is ‘business is personal’!

Family ties to eachother and the land

By this, I mean that an understanding of the affective and emotional dimensions of economic problems can be really important for solicitors. Indeed, it can be just as important as it is for lawyers doing family law, or wills and estates. But it can be a challenge figuring out how to “teach” emotion and affect in the context of the business associations classroom. Getting personal by using the family business has been one strategy. This makes taking seriously also ‘the ground’ on which the conflicts emerge.

Cedar boughs and thimble berry in the forest at the lake

For many years, I was also able to have the students think about how to work with a business client by bringing my mother Arta Johnson to class. She was the corporate memory for LaRue after the death of her own father, and had worked with many different lawyers over the years, as the family business had changed and grown. She was well positioned to talk to the students about challenges that had arisen, and about the things that she had done well, as well as about the mistakes that she had made. Quite a gift!

One of the gifts she was able to give us was the opportunity to grapply with “the making of a mistake”. Let’s call this mistake “Wrongly Removing a Director from the Corporate Registry”.

The short version of the story would be this: at one point during an emerging conflict, Arta believed that one of the Directors was not eligible to be a Director, so she went and filled out the Notice of Change of Directors form and submitted it to the Corporate Registry. The questions raised by the mistake were:

• What is the appropriate process for removing a director?
• What was the legal effect of submitting a form saying a director had been removed?
• Might this action be called “oppression”?
• What remedy would fix the harm?

NOTE: There are many longer versions of this event (which happened in 2003). If you want to follow the longer story, you can check out the history section of the LaRue Investments Ltd website. You will find there a set of video interviews in which Arta talks about the longer versions of this story.

In the classroom, I give the students all the background on this saga. It allows us to look at all the ways directors can be replaced, as well as at the relationships between Directors, and Officers. It lets us see that it is actually very simple to fix some mistakes (eg. all you have to do is submit a new Notice of Directors…no big deal). One can also see that the bigger problem might lie in the ongoing relationships between the parties, and not so much in the legal documentation. This is an important issue in the context of work with Indigenous legal orders, where relationality is a deeply important question in both legal process and legal remedies.

So, lets’s add in a piece of Canadian case law which engages with these questions in the context of Indigenous business associational forms. It is the case of Big River First Nation and Agency Chiefs Tribal Council Inc. The case comes out of the Non-Profit Sector, but gets at the same question as above: what happens when group A tries to remove someone from group B as a director?

What makes the case doubly interesting is that the Judge here refers not only to Canadian law (working with Saskatchewan law dealing with non-profit corporations), but also to Cree law.

Click on the link below for an 8 minute video I prepared about this case for students in my 2020 version of Law 315: Business Associations

https://echo360.ca/media/e28ce6f9-fbc4-4a5e-9a33-69e6d9e5d7e2/public

If you need a bit more backstory on the legal pieces before jumping into the ‘classrooom link’, here are a few more resources. First, here is a summary of the case from CanLII.

https://canliiconnects.org/fr/r%C3%A9sum%C3%A9/73312

Here is a blogpost about the case by (former law student) Miny Atwal.

https://indigenouseconomies.wixsite.com/main/post/big-river-first-nation-v-agency-of-chiefs-tribal-council-inc-2020-skqb-273

The link below will connect to a PDF version of some of my handwritten annotations on a printed copy of the case (which can be useful for modelling to more visually oriented students ‘some’ of the ways a person might engage directly with a written text)

26-big-river-first-nationDownload

I will be so very interested to hear what others make of the case, and how these two stories together might facilitate some of the important conversations we need as we begin struggling towards ways of working through the complicated business of problem solving in this period of decolonial work.

Property, Dancing, Drumming and Regalia

(August 15, 2016)

On my mind are the TRC recommendations on Indigenous Laws, Art and Culture (check out #50, and #83-#85)

Songhees Wellness Centre – photo by Rebecca

I was reflecting on these recommendations this summer, while at the Songhees Wellness Centre. attending the 2016 CIRCLE Gathering  (CIRCLE is the Centre for Indigenous Research and Community-Led Engagement at UVic).

Culture was placed front and centre at the workshop.  We had the opportunity to tour the centre, to talk about the physical design of the space, the incorporation of art, and bilingual sinage in English and Lekwungun supporting programs of language revitalization.  We also had the opportunity to have the Songhees Dance Group come and share with us a number of songs and dances. It was such a pleasure to watch the group, which included men and women, and dancers of all ages (adult, youth and children).

The second day of the gathering was explicitly focused on Culture.

As part of the day, members from the group returned, to talk with us about the group, its history, dancing, drumming, and regalia.  They also invited us to ask them about any questions we had.

What was interesting was both the generosity of the Songhees dancers in opening up the space for questions, and also the difficulty of us as participants beginning to know which questions to ask.

The conversations were super helpful me, and to other participants, as we talked together about the challenges and fears people have around sharing culture.  What is the difference between cultural sharing, for example, or expecting to have cultured ‘staged’ for you? (for a great post on this question, see Jess Housty’s blogpost “I Am Not The Indian You Had in Mind”, or Georgia Lloyd-Smith’s blogpost on “Respectfully Working in Indigenous Communities”

As we focused in on the regalia that had been worn by the dancers, I could also begin to see that we as participants were working to articulate differences between questions that are about ‘law’ or about ‘culture’, and questions that dealt with questions of history, authenticity, legitimacy and change.  Certainly, these questions (and answers) helped me to see both ‘more’, and ‘less’ in the regalia.  That is, I could see it was important to avoid romanticizing particular choices in design, but also to see the range of differences in the ways that different people made choices in ways that made the regalia both meaningful, and connected to history, and ‘theirs’.

One of the questions was of course about photographing.  In response to a question as to whether or not it was possible to take photos of the regalia, we were told, “well, you should ask the person whose regalia it is”.  This answer really hit me.  It was odd (being struck by the answer) because  that answer was in some ways so obvious.  Yes.   Ask the person whose regalia it is.  In this case, the regalia belongs to Gary Sam, and Gary said yes!

Gary, it turns out, is really something of an excellent beader (and talked to us about learning from his granny).  Indeed, not everyone in the group did all the work on their own regalia, and several of the people noted that Gary had helped out with their own (thus some awesome jokes about a possible new twitter hashtag, #GaryMadeIt!)

There is both more and less to be said, and there is lots more to learn, but it was clear to me that stepping into this space of drumming, dance and regalia can open paths for the necessary rethinking of property, ceremony, art and law that is ahead of us!

Reconciliation in a Real Property Securities Course – Not Necessarily a Missing Lien!

In 2019 and 2020, I taught a course on real property securities (Sûretés immobilières) at the Université de Moncton. This course traditionally focuses on the creation and enforcement of land securities based on mortgages, mechanic’s liens and registered judgments. Inspired by this blog and from colleagues around the country attempting to include their private law courses (broadly defined) in their reconciliation initiatives, I set out to dedicate about 3 hours (a weekly session) to this topic in my syllabus. My initial knowledge about this was limited to sections 29 and 89 of the Indian Act prohibiting charges, attachment, seizure and execution on property situated on a reserve:

89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

29 Reserve lands are not subject to seizure under legal process.

Indian Act, R.S.C., 1985, c. I-5

At first, I was a bit worried that the general un-applicability of mortgages and other charges on reserve lands would make for a very quiet 3 hours of class. However, the learning journey I embarked on to prepare this class took me much further than I anticipated and now resonates throughout the entire course.

I have found that studying the absence of real securities in reserves has shed a new light on many other aspects of the topic; it has worked as an effective entry point to understand the rationale for and socio-economic effects of real securities in mainstream society as well as a way to talk about the link between living conditions and economic development on reserves and the legal framework under which they operate.

In what follows below, I will share some of the key takeaways I wanted students to learn in this class, four activities I designed for the class, extracts from some of the primary resources I relied upon and some personal reflections on this ongoing journey.

KEY TAKEAWAYS

• The existence of securities (i.e. pledging one’s rights to property to someone else in order to guarantee the execution of some obligation) is contingent on the regime of private ownership of land;
• Private ownership and securities derive from the Western philosophical, political and legal approach to land and obligations but are not universal concepts and are not consistent with all existing worldviews;
• In mainstream society, secured transactions are key to access financing (=credit), which in itself is a crucial factor for economic development;
• Lack of financing leads to cheap repairs (e.g. to housing infrastructure), which cost more in the long run for marginal and temporary improvements; with financing, it is possible to invest in more efficient and more durable repairs or improvements;
• The reserve system has been a cornerstone of Canadian colonial policies since the 18^th century with devastating consequences on Indigenous communities (forced displacement to barren lands, forced dependency on economic exchanges with or charity from colonial settlements, destitution); it has also entrenched a communal ownership system which, when properly applied, protects communities against alienation of their lands to external creditors, albeit under the paternalist supervision  of the federal government rather than as a self-determination mechanism;
• The Indian Act’s limitation of real property securities on reserved lands to leasehold interests (or at least the way in which the Indian Act has been applied and misapplied) has played an important role in the perpetuation of poverty and despicable housing conditions on reserves, especially in the absence of robust alternatives to access financing;
• The limited impact to date of federal initiatives such as the First Nations Land Management Act and ministerial loan guarantees to make financing as available in reserves as in other segments of society;
• The importance of self-determination in potential reforms of the property regime, possibilities of alienation of land, and alternative ways to obtain financing and socio-economic development on reserves.

FOUR LEARNING ACTIVITIES:

Activity 1: (Reminder of) the diversity of worldviews on property

Assuming that students had been introduced to Indigenous perspectives on property in previous courses (especially in 1L), I wanted to remind them of what they already knew about the difference between Indigenous and settler approaches to property.

I assigned an extract from Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9; I chose this source because it was on the syllabus of the Property course they had taken 1 or 2 years prior.

By way of contrast, I assigned extracts from the Book of Genesis (chap 1, verses 26-28), Blackstone’s Commentaries on the Laws of England (Book II, Chap 1) and Locke’s Treaty on civil government (Chap V, para 25-44) to illustrate the Western society approach to property.

The goal was to illustrate the genealogy of Western view on private ownership of law, show how the idea of land securities derive from it but is at odds with traditional Indigenous approaches to land.

Indian ownership of property, and in this case, land, is wholistic. Land is communally owned. Indian property ownership is somewhat akin to a joint tenancy: the members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole. […] It is as though the original grantor of the land to the Indians put a condition on it … “so long as there are Indians”; “so long as it is not alienated”; “on the condition that it used only by Indians” etc. In other words, the Indians’ concept of title is not equivalent to a fee simple, but is somewhat less than a fee simple. […] If one attempts to trace the Indians’ source of title, one will quickly find the original source is the Creator. The Creator, in granting land, did not give the land to human beings only but gave it to all living beings. This includes plants, sometimes rocks, and all animals. In other words, deer have the same type of estate or interest as any human being.

Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9 at 101-103

^{There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.}

Sir William Blackstone, Commentaries on the Laws of England 1753 (Book II, Chap 1)

Bible, Book of Genesis, 1:26

Activity 2: Instructions to practioners dealing with mortgages on reserve lands

I asked students to read an institutional lender (e.g. a large bank)’s specific instructions to lawyers dealing with mortgages on reserve lands[1] or the “Leasehold mortgages and Lender Protection” section of the Canadian Bar Association’s Mortgage Instructions Toolkit.[2

Earlier in the course, the students had read a set of general instructions they would receive from an institutional lender when asked to register a mortgage. The benefits of looking at practice documents specific for mortgage transactions affecting reserve lands include:

• conveying the message that checking whether the land affected by the mortgage is located on reserve is part of general due diligence for such transactions (thus making the issue relatable for practice-oriented student minds);
• signaling that when this is the case, additional or different endeavors are required compared to usual transactions.

The specific instructions will highlight that a mortgage on reserve land can only take the form of a leasehold mortgage. This will in turn trigger two sets of questions and discussions:

First, the “why” questions:

• What is the legal frameworks for mortgages on reserve lands?
• Why is it that way? (answers to this question are complex and nuanced; they involve speaking on the one hand about the protection of reserved lands against further physical, economic and philosophical alienation and on the other hand about the history of displacement, broken promises, one-sided application of the Indian Act, paternalism, etc)

Second, the “so what” questions:

• “what is a leasehold mortgage?”
• “what can execution of a leasehold mortgage look like for the lender in case of case of default on the loan?”
• “what is the value of such a security for the lender?”
• “how does this affect the willingness of creditors to take such a security in exchange for a loan?”

Activity 3: ‘Discovering’ the housing conditions of Indigenous communities on reserve

I introduced students to evidence (statistics, photographs, etc) to make them understand what lack of repairs to homes can mean and look like:

44% of First Nations on reserves live in dwelling in need of major repairs, compared to 6% of the general population.

37% of First Nations on reserves live in overcrowded dwellings, compared to 8,5% of the general population.

Statistics Canada, (2017) “The housing conditions of Aboriginal people in Canada”

Red Sucker Lake First Nation (Manitoba)

Mould in a bedroom shared by several children (Sandy Lake First Nation, Ontario)

In addition to statistics and photographs, I also emphasized the multi-dimensional effects of such situations, including increased risk of fire and mold growth, physical and mental health risks (respiratory illnesses, depression, sleep deprivation, family violence) and socio-economic consequences (poor educational achievement, inability to retain skilled and professional members in the community).

This activity aimed at illustrating the connection between access to financing and living conditions. Living conditions are also a proxy to talk about socio-economic development more generally, thus integrating the residential and commercial uses of land securities.

Activity 4: Imagining solutions

I did not want to leave students with the impression that this state of things was inevitable. I gave an overview of some government programs aimed at addressing the issues, such as the First Nations Land Management Act and government loan guarantees. This included a discussion of the following points:

• The centrality of the idea self-determination when designing and implementing solutions (with reference to UNDRIP, art 3,4);
• Pros and cons of abolishing the relevant sections of the Indian Act;
• Ways to exert self-determination on land management;
• Alternative forms of land ownership, alienation and management to be agreed upon through modern treaties;
• Emerging Indigenous-owned-and-managed financial institutions;
• Accounting for the diversity of situations, perspectives, needs and preferences among Indigenous communities, including their own legal traditions, geography, state of affairs…

Of course, we didn’t leave the classroom with a clear, universal and easy-to-implement solution. Engaging with a wide range of possibities and their inherent complexity was the main goal here.

PERSONAL REFLECTIONS

I recognize that this is a lot more I need to learn to be truly proficient regarding the issues mentioned above, both on the legal and the cultural aspects. The Real Property Securities course was the first course I taught as a full-time faculty member and was my first attempt at integrating the lessons of the TRC in my teaching. It has been a tremendous learning journey.

I realized that studying the absence of real property securities for land on reserves taught us a lot more than expected about real property securities in mainstream society, both with regard to their necessary connection to the idea of private ownership and to their role in socio-economic development.

This illustrates the amazing potential of studying Indigenous issues in “seemingly-unrelated-law-courses”; it serves at the same time to educate all students on the history and contemporary realities of many Indigenous communities, including the role of legal institutions and actors in it, and give human and social meaning to otherwise doctrinal topics, well beyond Indigenous issues themselves.

Dedicating a 3-hour session to this inquiry in my term-long course has not been a parenthesis to take a break from the serious study of mortgages and mechanic’s liens; to the contrary, it has provided a space to analyze the causes and social consequences of these legal institutions and deepen the understanding of their functions in society.

Key resources to learn more on the topic (and eloquent extracts):

Indian Act, RSC 1985, c I-5, ss 2, 18, 20, 28, 29, 89

First Nations Land Management Act, SC 1999, c 24

UNDRIP, s 3, 4

Scott Hitchings, “Real Property Security on First Nations Reserved Lands” (2017) 80 Sask L Rev 125

Scott Higgins, “Real Property Security on Indigenous Lands” (2018) 83 SCLR 317

24. The housing situation in Inuit and First Nations communities has reached a crisis level, especially in the north, where remoteness and extreme weather exacerbate housing problems. Overcrowded housing is endemic. Homes are in need of major repairs, including plumbing and electrical work. These conditions add to the broader troubling water situation in First Nations reserves, in which more than half of the water systems pose a medium or high health risk to their users. The housing crisis has been identified by Inuit representatives as a high priority issue. It is worth noting that the chronic housing shortage has a severe negative effect on a wide variety of economic and social conditions. Overcrowding contributes to higher rates of respiratory illness, depression, sleep deprivation, family violence, poor educational achievement, and an inability to retain skilled and professional members in the community.

26. Overall, investments have not kept pace with the demand for new housing or the need for major renovations to existing units. Government representatives have attributed the lack of adequate funding in a large measure to the difficulties presented by the communal ownership of indigenous lands in obtaining mortgages or financing for housing. In response, the Government has established loan guarantees, for which First Nations can apply, to provide security for on-reserve housing loans. Despite loan guarantee increases in recent years, much more remains to be done to provide secure loans for housing, both on and off reserve, in a way that respects and accommodates for the communally held nature of aboriginal lands.

James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, The situation of indigenous peoples in Canada, 2014 online: https://www.ohchr.org/documents/issues/ipeoples/sr/a.hrc.27.52.add.2-missioncanada_auv.pdf at para. 1-28

Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (Interim Report) (February 2015), online: https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf

Joan Kendall, “Circles of Disadvantage: Aboriginal Poverty and Underdevelopment in Canada” (2001) 31:1 Am Rev Canadian Studies 43 at 51 (highlighting the following additional barriers to obtain financing: lack of education and business experience, the difficulty of coming up with initial down payments and the remoteness of the communities)

Was the Indian Act the cause of the First Nations’ poverty in Canada? Many would like to say yes, but the answer is no. It was the misuse of the Act by Indian Affairs bureaucrats to oppress First Nations peoples that caused the poverty. If competent and non-biased people had administered it from day one, I firmly believe that the results today would be far different.

The Indian Act was not designed by bureaucrats to preserve First Nations cultures and see them prosper, but to deliver the final blow. Fittingly, as a measure of poetic justice, it has turned out to be a salvation. The men who sought to destroy our cultures, motivated by their racist perceptions of themselves as products of superior civilizations, would roll over in their graves if they knew the actions they had taken to facilitate the demise of First Nations were the very actions that ultimately saved them. […]

The Act is only an inanimate piece of paper, unable to do anything on itself. Just as for any other law, it is the individuals applying it who give it life. Those responsible for administering the Act chose to give it life by showing a disdainful indifference toward the trust and other legal obligations that its provisions prescribed. Let us note that from its enactment tin 1876 and until very recently, the Ministry decided to use the provisions of the Act in an attempt to destroy the First Nations civilizations through assimilation. That is, I believe, what we call a cultural genocide.

Daniel N Paul, L’Histoire des Premières Nations : Ce n’était pas nous les sauvages, 2020, Mouton Noir Acadie at 316-317 (available in English: First Nations history : we were not the savages : collision between European and native American civilizations, 3^rd ed, 2006, Fernwood)

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[1] See e.g. for RBC: “Additional Instructions to Lawyer Leasehold Mortgage on Indian Lands” https://www.rbcroyalbank.com/legalforms/nb-residential.html

[2] See https://www.cba.org/Publications-Resources/Practice-Tools/Mortgage-Instructions-Toolkit/Leasehold-Mortgages-and-Lender-Protection

[3] Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

[4] There are numerous examples in  Interim Report of the Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (February 2015), online; https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf; additional local examples can be found in news sources.

No Reconciliation Without Truth: A Reckoning for University Honouring Practices

• 

  A memorial at the former Kamloops residential school. Photograph: Dennis Owen/Reuters.

On June 3, 2021, the following letter was signed by 46 faculty and staff members of the Peter A. Allard School of Law and sent to the Senates (Vancouver and Okanagan) and Board of Governors of the University of British Columbia. The letter calls on these bodies to promptly and without unnecessary debate revoke an honourary degree granted by UBC to Bishop O’Grady, the former Principal of the Kamloops Indian Residential School. There is no debate to be had here – revocation is one necessary, though not sufficient, step toward acknowledging the truth about Canada’s Residential Schools legacy and the complicity of universities and other institutions in that legacy and settler colonialism more broadly. Acknowledging this truth is also one part of the larger work of law faculties in response to the Calls to Action made by the Truth and Reconciliation Commission. Acknowledgement, though, must also be accompanied by action and reparation, especially from an institution that continues to profit from the unceded lands of the Musqueam people. More is needed, including a systematic review of honourary degree awards and naming practices from all post-graduate institutions in Canada. But we hope the small steps called for in this letter can be taken immediately in response to the confirmation of what survivors have long been saying about the genocidal history of residential schools in Canada. Information about how to support Tḱemlúps te Secwepemc, including through monetary donations, can be found here. [Introduction by Kristen Thomasen and Debra Parkes]

***

To the Senates and Board of Governors of the University of British Columbia:

As you know, in 1986 – the same year when some institutions began to acknowledge their complicity in the colonialism of residential schools[1] – the University of British Columbia granted Bishop John Fergus O’Grady an honorary doctor of laws.[2] O’Grady was Principal of the Kamloops Indian Residential School from 1939 to 1952.[3] On May 27, 2021, Tk’emlúps te Secwépemc First Nation confirmed the identification of remains of 215 children, some as young as three years of age, on the site of what used to be Canada’s largest residential school.[4] This announcement follows many decades of survivors, First Nations and community members seeking answers and accountability for the disappearances of their loved ones. Many other children remain missing and unaccounted for: to date, the Truth and Reconciliation Commission has identified names or information about at least 4,100 children who died in Canada’s residential schools.[5]

We write as faculty and staff of the Peter A. Allard School of Law, with a mind to our obligations under the Truth and Reconciliation Calls to Action, and as gatekeepers to a profession that has been, and continues to be, instrumental in upholding colonial genocide in this country. We call on the UBC Vancouver and Okanagan Senates to revoke this honorary degree immediately.

Revocation, while an important symbolic gesture, is insufficient if not backed by concrete action. We also call on the Senates to accompany this gesture with an acknowledgement of UBC’s complicity, as well as material reparations. We call on UBC to contribute material support for efforts in B.C. to locate further unmarked gravesites, as well as to maintain the sites of former residential schools, as Indigenous leaders and experts are calling for. 

We hope these immediate steps can be taken without debate or delay.

We further call on the UBC Senates and Board of Governors to embark on a systematic review of past honorary degrees and naming practices with a view to redressing the ongoing harms of UBC’s role in upholding colonial genocide.

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[1] E.g. the United Church of Canada initially apologized to First Nations for its role in residential schools  in 1986: https://united-church.ca/sites/default/files/apologies-response-crest.pdf

[2] UBC Archive: https://www.library.ubc.ca/archives/hdcites/hdcites8.html; Prince George newspaper on O’Grady’s retirement discussing the award: http://pgnewspapers.pgpl.ca/fedora/repository/pgc:1986-10-14-09

[3] Charlie Smith, “UBC will review honorary degree granted to former Catholic Bishop John Fergus O’Grady” The Georgia Straight (31 May 2021): https://www.straight.com/news/ubc-will-review-honorary-degree-granted-to-former-catholic-bishop-john-fergus-ogrady

[4] Media release: https://tkemlups.ca/wp-content/uploads/05-May-27-2021-TteS-MEDIA-RELEASE.pdf

[5] Truth and Reconciliation Commission of Canada Missing Children Project:  http://www.trc.ca/events-and-projects/missing-children-project.html; The Final Report of the Truth and Reconciliation Commission of Canada, “Canada’s Residential Schools: Missing Children and Unmarked Burials” (Volume 4):  http://www.trc.ca/assets/pdf/Volume_4_Missing_Children_English_Web.pdf 

Reconciliation Summer Reading List? “At the Bridge: An Anthropology of Belonging”

[EDITOR NOTE:  I wrote this blog piece for my personal blog rebeccaj63.wordpress.com], but I am re-posting it here as I think it is something that may be of interest to Law folks looking for resources for TRC-engaged teaching and learning.  This book is a goldmine re h TRC#28’s call for education about Indigenous law, Aboriginal-Crown relations, conflict-resolution and intercultural competency.]

Looking for a good read this summer, during COVID times?  One of my favourite books of the year is Wendy Wickwire’s book,  At the Bridge: James Teit and an Anthropology of Belonging (UBC Press, 2019).

Now, you may be thinking “I don’t know who James Teit is”, or “Anthropology isn’t really my thing.”   I would encourage you to push past those responses, and say that if you give this book a try, you will come away being so happy to have built a relationship with James Teit, and I suspect you may also come away feeling connected in a more intimate way to the places you live (where ever those places are) and feeling more  hopeful about the ways we all may choose, in these difficult times, to become anthropologists of belonging.  In concrete terms, here is what it says on the back cover of the book:

Every once in a while, an important historical figure makes an appearance, makes a difference, and then disappears from the public record.  James Teit (1864-1922) was such a figure.  A prolific ethnographer and tireless Indian rights activist, Teit spent four decades helping British Columbia’s Indigenous people in their challenge of he settler-colonial assault on their lives and territories.  At the Bridge chronicles Teits’s fascinating story:  From this base at Spences Bridge, BC, Teit practised a participant-based anthropology that covered much of BC and northern Washington, Oregon, Idaho, and Montana. Whereas his contemporaries, including famed anthropologist Franz Boas, studied Indigenous peoples as the last survivors of “dying cultures” in need of preservation in metropolitan museums, Teit worked with them as members of living cultures actively asserting jurisdiction over their lives and lands.  At the Bridge lifts this story from obscurity.

It bugs me knowing Boas published this photo of Teit and Ankto photo without identifying them.

I was excited when this book came out, in part because I had already encountered Teit.  Or at least, I knew his name.  For several years, I had been part of a partnership between ILRU (the Indigenous Law Research Unit at UVic) and the SNTC (The Shuswap Nation Tribal Council) working on a number of the Secwépemc Law projects. In these projects, we were asked to work with a number of Secwépemc storied legal resources, and to draw on a number of those gathered by James Teit at the turn of the last century (You can see a copy of the Lands and Resources Law Research Project here).  All this to say, I knew that his name was on the monograph from which we drew these resources.  But I knew next to nothing about Teit himself.

And now, I love him.   Seriously.  And I love thinking about his Nlaka’pamux wife Antko, and the place of women in this important story.  And I love the book.   You know I love a book if I lay traces of my pens and highlighters so thickly across the paper.  My copy of the book pretty much looks like this…..  I couldn’t help myself!  (sorry to you librarian folk out there who try to maintain book purity). But the text simply drew me into engagement, and there were just so many things i wanted to be able to return to. While my kids (nearly adult man-cubs?) have not yet ‘read’ the book (physically run their eyes over the pages), they both have a good sense of what is there:  while I was reading, I was constantly stopping to interrupt them in their other endeavours, so I could read them different sections from the book.

A treat to see pages from his field notes, always identifying specific storytellers, weavers, hunters…

It is just chock-a-block full histories that need knowing.   And it is written in such an accessible style, whether one is a theorist, a historian, a  teenager, a community member, a health care worker, an environmentalist, a linguist, a knitter, a basket maker.  Beautifully thoughtful and inviting.

I also think it should be mandatory reading for anyone teaching in a law school (OK.  Not that I would “mandate” anything, but I think people would WANT to have access to this one).

The day I finished my first read through of this book, I sent the following note out to my law school colleagues, detailing all the reasons I think this book should be on all our shelves, and should be drawn into our teaching, our research, and our practices of engaging in the socio-political world around us.  I still stand by that analysis.

Hi all:

I have been reading my way through Wendy Wickwire’s new book At the Bridge: An Anthropology of Belonging, and wanted to put the word out that I think this book might be the “must read” book of the year.  I have been thinking about how it is a game changer in a number of areas:

1. People teaching in BC law schools – I feel like the historical pieces of BC finally started settling into place with this book

2.  People teaching constitutional law – wow to the ability of this book to get at both confederation questions and federalism ones

3.  People thinking about reconciliation stuff — the story of James Teit is so absolutely inspiring in terms of seeing indigenous/settler collaborations and working relationships

4.  People working on any of the transsystemmic questions — this book gets at the legal orders in the BC interior

5.  People thinking about the history of Victoria and Vancouver Island — I just think this book should be taught in all the high schools here too.

6.  People looking for models and pathways for how we begin to have more complex engagements of law at the current juncture.

7.  People cautious about the place of anthropology in our legal work — this book makes visible multiple ways of doing anthropology, and provides tools for distinguishing the kinds of approaches that are more and less helpful/valuable (indeed, left me feeling rather inspired about the possibilities of acting otherwise)

Anyways…. I think it would be a great choice for a faculty “book club” read.   This will be an amazing resource for us here in the law school, and I am really keen on having others to talk to about the book (and ways to think about drawing this book into our resources in both first year and upper year courses)

Wendy Wickwire’s At the Bridge is one of those books that has shifted my sense of history, and my sense of what is possible when it comes to walking the path of respectful relations, and taking seriously the hopeful potential in decolonizing actions.  What James Teit did (as a settler to Canada) is possible for all of us to do.  He offers us a pathway.  It is ours to walk.

Truth and Reconciliation – A Place to Start

[Note from Gillian Calder and Rebecca Johnson:  We came across this lovely TRC Action Plan, produced by Sarah Robinson, a former law student.  It left us thinking about all the different ways people might not only think about their own TRC learning plans, but also about the ways such plans might be helpful with people in their classrooms, families, or communities.  We asked her if it could be shared here as a resource, and invited her to reflect on her own experiences of the ways people at different stages of their own work might begin to think about their own learning journeys]

Sarah Robinson

TRC Action Plan, page 1

Many Canadians – including those working in legal and justice systems –  find truth and reconciliation efforts overwhelming, and often express that they don’t know where to start.

If you feel that way, know that you’re not alone.  Many online resources exist to help build understanding about Indigenous perspectives, including a free Truth and Reconciliation Personal Action Plan [link to: http://rainwatch.ca/tr-personal-action-plan] to help you get started.

Hundreds of Indigenous cultures exist in the lands now known as Canada. Many continue to operate under complex legal systems that have existed for millennia, and all have been impacted by the recent introduction of Canadian law.

Aaron Paquette, an Indigenous[i] artist and politician, once remarked that

If you’re born Indigenous, you’re born political. From birth, the government is intensely interested in who you are [and] where you live… Indigenous lives are the most legislated lives in Canada.[ii]

TRC Action Plan, page 2

To understand what this means, we must examine the dominant legal system that now operates in the territories now known as Canada. Interrogating this legal system exposes its Euro-Christian foundations and brings its histories into the realm of light and truth. Seeking truth is a necessary component of each Canadian’s responsibility to reconciliation.[iii]

Generally, a legal system is a mirror of the society in which it develops, and of the people who hold power in that society. Western legal systems – including contemporary Canadian and provincial legal regimes – are built upon Euro-Christian worldviews, beliefs, and values, such as patriarchy, private property, wealth accumulation, individual rights, and elections-based governments. These approaches sit in contrast to many Indigenous worldviews, beliefs, and values, such as matriarchy, communal use of places, wealth distribution, collective rights, and accountability-based governments. None of these systems are perfect. All cultures and legal systems offer successes, challenges, and room for improvement.

However, it is vital to appreciate that all legal systems uphold and replicate – both visibly and invisibly – particular worldviews, beliefs, and values.

When settlers first arrived, they may have imported Euro-Christian values with them but they relied heavily on Indigenous allies and knowledge in order to survive. Many Indigenous communities recount oral histories about their first interactions, in which the newcomers were often lost, hungry, and in need of help. The newcomers brought new diseases to this continent and epidemics quickly swept through Indigenous communities, decimating some populations by up to 90%.[iv] Simultaneously, thousands of settlers continued arriving to “the colonies,” their occupation made easier as railways and other forms of transportation improved. By the time colonial leaders began drafting legislation about Indigenous peoples, settlers physically outnumbered Indigenous peoples. Due in part to this, the colonial legal system eventually took hold as the dominant legal system in the developing geopolitical country of Canada.

In 1850, colonial legislation established a legal distinction between Indigenous peoples and settlers by defining – from the colonial government’s perspective – who is an “Indian.”[v] Subsequent legislation clarified that a “person” was an “individual other than an Indian.”[vi] In 1869, the colonial government implemented a patriarchal approach to Indian Status and identity control, which erased the legally-recognized Indigenous identities of innumerable Indigenous women and children. (In fact, Bonita Lawrence estimates this figure to be in the millions[vii]). Over time, Canadian legislation effectively dispossessed these millions of Indigenous individuals from their territories, thereby opening up the land for settlement. This oppressive legislative approach was finally revised in 1985, but the damage done by this 116-year regime remains widespread.

To reiterate: from 1869-1985 Indian Status had nothing to do with Indigenous ancestry. (For an excellent overview, see Val Napoleon’s work[viii]). Indian Status was established to legally create, erase, and control Indigenous identities and bodies by regulating who can do what and where. The Pass System is a disturbing example.[ix] From the 1880s until the 1930s, Status Indians were supposed to seek a written pass from their local Indian Agent before leaving their reserve. This allowed Indian Agents to monitor and control Indigenous people’s movement. There was no legislative basis for this approach. Instead, rations and other “privileges” were withheld from those who did not comply, although the most effective compliance approach was to have the police arrest those found off-reserve without a pass.[x] In 1902, a commission from South Africa visited Canada to study its Pass System as a method of social control,[xi] and passes later became a cornerstone of South African apartheid.

It is curious that Canadian legislation about Indigenous peoples presents a paradox of “protective assimilation,” [xii] in that it acknowledges Indigenous peoples’ unique rights while concurrently placing strict restraint on Indigenous identities, and therefore Indigenous bodies.

In 2015, the Truth and Reconciliation Commission (TRC) of Canada released 94 Calls to Action, [link to: http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf] which place responsibility on the shoulders of each Canadian to learn about and unpack these histories. Of particular significance are Calls to Action 25-42, which are directed at those working in legal and justice systems.

There is no time like the present to begin righting the wrongs of the past. As the TRC Final Report encourages, “the country has a rare second chance” to pursue truth and reconciliation.[xiii] Download your free Truth and Reconciliation Personal Action Plan [link to: http://rainwatch.ca/tr-personal-action-plan] to get started, and be part of the change.

FOOTNOTES:

[i] Although this blog post frequently uses the word Indigenous (which signals Inuit, First Nations, and Métis peoples), its content speaks to legislation that was somewhat targeted to First Nations. However, all Indigenous peoples are impacted by colonial legal systems that interfere with Indigenous experiences, including defining and categorizing different types of Indigenous identities in the first place.

[ii] CBC. I Am Indigenous. https://www.cbc.ca/news2/interactives/i-am-indigenous-2017/paquette.html.

[iii] As the Truth and Reconciliation Commission (TRC) Final Report stated, “reconciliation is not an Aboriginal problem; it is a Canadian one.” TRC Summary Report, vi. http://www.trc.ca/assets/pdf/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf.

[iv] I am married into the Toquaht Nation, one of the Nuu-chah-nulth Nations on the west-coast of what is now called Vancouver Island. Toquaht was once a Nation of thousands. After disease epidemics passed through, around 30 remained.

[v] An Act for the better protection of the Lands and Property of the Indians in Lower Canada. August 10, 1850. https://bnald.lib.unb.ca/sites/default/files/UnC_1850_cap%2042_edited.pdf.

[vi] The Indian Act, 1876. https://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254.

[vii] Bonita Lawrence. “Real” Indians and Others: Mixed Blood Urban Native Peoples and Indigenous Nationhood (UBC Press: 2004), 56. Check this book out for a brilliant and comprehensive analysis of the impact that Indian Status has had on Indigenous women, children, Nations, territories, and identities.

[viii] Val Napoleon. “Extinction by Number: Colonialism Made Easy.” Canadian Journal of Law & Society (2001)16, 117.

[ix] A documentary about the Pass System is available at: http://thepasssystem.ca/.

[x] John Giokas. “The Indian Act: Evolution, Overview and Options for Amendment and Transition” (March 22, 1995), 45. http://publications.gc.ca/collections/collection_2016/bcp-pco/Z1-1991-1-41-130-eng.pdf.

[xi] F. Laurie Barron. “The Indian Pass System in the Canadian West, 1882-1935.”

https://www.saskarchives.com/sites/default/files/barron_indianpasssystem_prairieforum_vol13_no1_pp25ff.pdf.

[xii] For an interesting overview of the “protective assimilation” paradox and its presence in colonial policies about Indigenous peoples, see: John Giokas. “The Indian Act: Evolution, Overview and Options for Amendment and Transition” (March 22, 1995), 2. http://publications.gc.ca/collections/collection_2016/bcp-pco/Z1-1991-1-41-130-eng.pdf

[xiii] TRC Summary Report, 7. http://www.trc.ca/assets/pdf/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf.