Implementing Indigenous Law in Agreements – Learning from “An Agreement Concerning the Stewardship of the Witness Blanket”

witness blanket

In October of 2019, through ceremony conducted in Kumugwe (the K’omoks First Nation Bighouse), the Canadian Museum for Human Rights (CMHR) and Artist Carey Newman entered into “An Agreement Concerning the Stewardship of the Witness Blanket – A National Monument to Recognize the Atrocities of Indian Residential Schools” . Under this agreement, the Witness Blanket would find a permanent home in the Canadian Museum for Human Rights in Winnipeg.

https://humanrights.ca/exhibition/the-witness-blanket

A group of us from the Indigenous Law Research Unit at UVic had the privilege of being present at the Ceremony, watching as artist Carey Newman and the CMHR  (through its President and CEO John Young) entered into an agreement to be Joint Stewards to the Witness Blanket.  This agreement  is on the cutting edge of transsystemmic law.  It is governed, shaped, and enacted through a weaving together of Indigenous and Canadian legal understandings and protocols.  It contains both written and oral commitments.  More specifically, it draws both Kwakwaka’wakw traditional legal orders and Canadian Common Law into collaborative engagement.   Click on the link below to read more about the Ceremony.

https://www.theglobeandmail.com/arts/art-and-architecture/article-the-witness-blanket-an-installation-of-residential-school-artifacts/ 

The experience of reading the Written Agreement and of attending the Ceremony was powerful on so many levels.  In particular, it was an inspiration and education on what might be possible in the work of law, as we think about next steps forward in legal education and practice.

Drawing on this experience, we drew on the Witness Blanket during the January segment of our Legal Process class this year.   In this post, we share a number of resources that might be helpful for people in law wanting to think more about many of the things to learn from both the Witness Blanket, and the Stewardship Agreement.  At the end of the post are a few comments on our own first experiences of drawing the Witness Blanket into the law school classroom.

We note here that the Agreement is shared with the permission of both Carey Newman and the Canadian Museum of Human Rights. Their willingness to have the agreement shared and made publicly visible is both a gift, and a teaching.  There is more to be said about this teaching, and about the powerful work of Ceremony, and the Oral component of this agreement.  I hope to return to those in a later post.

Here is a copy of the Agreement itself:

Witness Blanket Stewardship Agreement v04.4

This is an ‘annotated copy’ of the Agreement (Rebecca’s annotations) designed to organize some thoughts and make visible some aspects of the Agreement that can generate important conversations.

Annotated Witness Blanket Stewardship Agreement

BACKGROUND:   What IS the Witness Blanket?

WitnessBlanket (2)
Carey Newman and the Witness Blanket (photo credit: Doug Little/CMHR)

For those who have not yet encountered the Witness Blanket, it is described on its website as follows:

Inspired by a woven blanket, we have created a large scale art installation, made out of hundreds of items reclaimed from Residential Schools, churches, government buildings and traditional and cultural structures including Friendship Centres, band offices, treatment centres and universities, from across Canada. The Witness Blanket stands as a national monument to recognise the atrocities of the Indian Residential School era, honour the children, and symbolise ongoing reconciliation.

http://witnessblanket.ca/

THE DOCUMENTARY

There is a wonderful documentary on the Witness Blanket, produced by Carey Newman and Cody Graham of M1 Films https://m1films.ca/portfolio_page/witness-blanket/.  Below is a link to the Trailer for the movie.

 

There are two versions of the Documentary: one is 90 minutes, and the other is 55 minutes (edited down to make it easier for teachers to show it during a standard class time).  You can contact the CMHR to arrange to have it streamed (no cost involved).

The documentary is powerful in so many ways, and can open room for many conversations:

  • It gets at the history and legacy of residential schools
  • It provides an introduction to the Indian Residential Schools Settlement Agreement
  • It enables one to listen to the voices of a number of survivors, and does this in ways that are contextualized and respectful, and which take up land, place, voice, memory, and more
  • it gets at the intergenerational transfer of trauma, and at avenues for disrupting those injuries and patterns (for Indigenous and non-Indigenous people alike)
  • it opens space for looking at the relationships between art and law (including questions about problem solving, process, creativity and collaboration)

THE BOOK

51YgZU4Je7L._SY461_BO1,204,203,200_

Another great resource for background is a book about Witness Blanket, called ‘Picking up the Pieces”.  The book contains a collection of  stories and reflections on segments of the larger blanket.  It has many colour photos, and lots of closeups, and is organized so that you can explore small pieces of the Blanket in more intimate detail (along with stories related to the objects)

 

MEDIA CONVERSATIONS

Another resource is a 24 minute interview with Carey Newman on the APTN Program “Face-to-Face.”  He was being interviewed at the Canadian Museum for Human Rights, during the launch of the book and Documentary “Picking up the Pieces: The Making of the Witness Blanket”.  It is a lovely introduction to both the artist, and the work.  Carey Newman speaks about community based and collaborative art practice, and there are some very interesting parallels there to legal practice and processes.  Also some lovely thoughts on how to carry ‘the weight’ of difficult stories.  I very much appreciated his comments about challenges in the ways we (artists and lawyers) attempt to tell complex and multi-layered stories.

 

 

A SIDE NOTE ON THE RELATIONSHIP BETWEEN THE WITNESS BLANKET, THE TRC AND THE IRRSA

It can be worth making visible the relationships between the Indian Residential Schools Settlement Agreement (IRSSA), the Truth and Reconciliation Commission (TRC) and the Witness Blanket.  There were 5 main components to the IRSSA (which was the settlement of the largest class action in Canadian History.   The first three involved agreements about payments that would be made to the parties to the action (still living survivors from a list of 139 schools co-managed by the federal government and 4 church organizations).  But the last two components aimed at involving all Canadians in the discussion, and in the work ahead.  These were:

  • The establishment of the TRUTH AND RECONCILIATION COMMISSION; and
  • The establishment of a fund to produce works of COMMEMORATION.

Of some significance is the fact that both the TRC and the Commemoration projects serve to benefit all of Canada.  That is, you can see both these projects as funded not by the government or churches, but by the survivors themselves (as they chose to direct payments forward to the future, rather than directly to themselves).  A moving gift to all of us.

And so, The Witness Blanket is one of the projects that emerged from the Commemoration component of the IRSSA, and is thus designed to engage all Canadians in the work of Truth and Reconciliation.   For more on the Terms of Reference for both the TRC and the Commemoration fund, you can follow the link below (see Schedule J and Schedule N:

http://www.residentialschoolsettlement.ca/settlement.html

The federal government also has a webpage that organizes some information around Indian Schools Settlement Agreement (including summaries and links to more information on both the TRC and the Commemoration Projects.

https://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577

SOME COMMENTS ON TEACHING WITH THE AGREEMENT

As mentioned at the beginning, we used the Agreement as part of our teaching during the during our Legal Process course in January.   Legal Process is a mandatory class for our first year students.  The majority of the class occurs in the first two weeks of September.  It is an intensive course where the students spend the two weeks in a combination of small and large group settings.  In the context of the small sections, they work in groups of 20 or so students and 3 teachers.  They return to those groups in January for 2 mornings which have been devoted in recent years to TRC work.

This year, the first morning focused primarily on the TRC, and the second morning on the Witness Blanket.   The second morning, there were three primary activities related to the Witness Blanket:

  • The students watched the Witness Blanket documentary as a group (an hour)
  • Students then met in their small groups to read the Stewardship Agreement.  They were given an “assignment” to help guide them in their reading.  Note, the premise of the assignment was that students could imagine themselves wanting to produce a postcast episode about the Witness Blanket.  There was no expectation that they would in fact complete such a task, but the hope was that this imagined activity might help guide their reading in ways that would direct their attention to the importance of sound, image, translation, collaboration and more.
  • Students returned with their questions to meet as a large group, where, through the magic of a Video linkup, they were able to listen to Heather Bidzinski (Head of Collections – Canadian Museum for Human Rights).  She spoke to them about her participation in the creation of the Stewardship Agreement, in the Oral Ceremony, and about challenges, lessons learned, and what is being carried forward through this form of legal work.

One of the powerful take away lessons for me came in Heather Bidzinski’s comments to the students that there were nearly a dozen prior versions of the Agreement, and that the work of arriving at the ‘final version’ involved more than two years of ‘building relations’. In short, she told them that the most powerful learnings came in the work PRIOR to the signing of the agreement.  The magic, she argued, is not so much IN the written text as it is in the RELATIONSHIP that was built between the Parties as they spent time and energy learning more about the ways they might work with each other.

This insight is helpful in thinking about how we do the work of teaching about the TRC in the classroom.   There is lots to be said about the concrete lessons plans and teaching materials, but also lots to be said about what we learn in the process of planning and trying to implement those plans.   Doing TRC related work is affectively challenging, and can require much from both faculty and from students.   One can anticipate that this work is more or less difficult for different students.  It is helpful to remain reflexive in the exercises, as there will be things to learn in each encounter about way to support learning, both by students and professors.  We acknowledge that we are baby-learners in this work, and that there are a number of bumps and bruises (both to ourselves and others) as we try to move ourselves along this path.

Some things we considered in setting up the exercise included:

  • There is great power in film to help convey some of these histories.   The Witness Blanket documentary is particularly powerful in this regard.  Let the students know this in advance, so they can be prepared for the different learning that can be enabled where they can see/hear/feel an argument.
  • Let the students know in advance that some of the students (and faculty and staff) have personal experience with residential school histories.  It is important to be alert to this in dealing with each other, and kindness and care are crucial.  The more advance notice, the better.  There is power in watching a film in a group, but it is also possible to leave space for students to do the watching in smaller or more intimate contexts.
  • If the material is linked to a mandatory element (as ours is), then it can be helpful to create space for some students who have concerns to complete the requirement through an alternative exercise (that does not require them to be in the classroom with other students).
  • We involved our Amicus team (counsellors and cultural support people), so that there were people and resources to support students for whom the affective load of the material felt too high.
  • For at least part of the time, students worked in small groups.  Each group had two professors and a grad student assigned to it, so there would be a range of experiences to draw on and from.
  • Advance workshops for faculty or students on Trauma-informed practice can be helpful.  It also can be useful to create space for Faculty to work with each other in advance, so that they feel comfortable both with the material, and in working with students.  It is helpful to remember that we, like the students, are often coming to the game with some gaps in prior knowledge about residential schools.  Some tenderness and care with each other (and not only with the students) can be very helpful in doing TRC work in the law school.

There is undoubtedly more to say, and there are many ways to learn with and from the Witness Blanket Agreement.    Certainly, for those of us in Law, the work of truth and reconciliation is the work of a lifetime.  It is hopeful having models to look at, models that can help us think through more useful questions about ways to do the work. The hope is that these resources/links can provide some context for others to also explore the power of this Agreement for the teaching and practice of law.

We would love to hear ideas and thoughts about things you have tried in your own classrooms and law schools, as well as comments about things that might be done differently!

Teaching with Love: Inside and Outside the Law School Classroom

Author meets Readers: Law’s Indigenous Ethics[1]

Laws Indigenous Ethics

 

A question that I have been thinking about for a while is some version of “What role should love play in a legal education?”

The question is partly prompted by the work of bell hooks, when she argues — “When as teachers we teach with love, combining care, commitment, knowledge, responsibility, respect, and trust, we are often able to enter the classroom and go straight to the heart of the matter.  That means having the clarity to know what to do on any given day to create the best climate for learning.”[2]

It is also partly prompted by the work of Susan Bandes, and other scholars of Law and Emotions, who argues with her colleague Jeremy Blumenthal that “there is mounting evidence that emotion cannot be cordoned off from ethical and moral judgment without impairing both ethical judgment and well-being; such evidence has broad implications for the teaching and practice of law.”[3]

My recent thinking on love and legal education is also deepened by three Scottish colleagues who in the Fall of 2019 rode their bicycles between the six Scottish law schools, offering workshops on (amongst other things) the role art can play in critical feminist pedagogy, and in particular feminist judgment.  They argue, in the words of Patricia Williams, “It really is possible to see things – even the most concrete things – simultaneously yet differently.”[4]

Is bringing the body/art/emotion into the study and practice of law one means of bringing love into a legal education?

So, you will imagine my delight when I first picked up my colleague John Borrows’ book, Law’s Indigenous Ethics, and read these words: “Love is an important internal self-explanation for many public-spirited actions.  So, I ask the question again: Why are concepts of love absent in legal language and debate?”[5]

My contribution here today flows from a read of Chapter One[6] in conversation with Chapter Five[7] – what might happen in legal education, at this critical moment on the planet, if we took seriously love as necessary practice and reimagined the walls that silo us inside classrooms?

Chapter One looks carefully at love as a legal principle, one of the seven Grandmother/Grandfather laws, and its place in the language of rights and obligations throughout Canadian Law.  Chapter Five offers some on the ground storytelling of how to take a love as a legal principle out of the classroom and onto the land, figuratively and metaphorically.

I start my reflections by drawing on the techniques of “found poetry”; pulling insights from reading Gift One: Love in conversation with Gift Five: Wisdom.  I conclude by offering some thoughts on how to take up John’s challenges about love, law and pedagogy, for transformative teaching.

 

1.      Found Poetry[8]

 

Her voice was clear; its strength was unmistakeable.  She called to the ends of the earth and sky.
When you don’t know where to turn, open this bundle – the laws within will guide you, even if they don’t settle every question.
How is love relevant?  Why are concepts of love absent in legal language and debate?

Love should be perceptible; it should swell, expand and project itself into our relationships.
While some of this instruction can occur in the classroom, walls can hide important legal resources.
We must beware of the dangers of a single story.

Many laws flowing from our political processes are designed to enhance freedom, autonomy and choice.
Law is not just about force – it also requires our participation and agreement.
We must join our best legal insights to help one another avoid the misery, pain, and destruction all societies face when love fails to guide their actions.

The language of love can be dangerous and we must be exceedingly wary of its appearance.
Languages of love must be decolonized; appeals to love must always be contextual.
Air, fire, water, earth, plants, animals and fish.

We learn differently when we change the physical context; engaging all of our senses.
When students learn in an embodied way these lessons can be more deeply internalized.
Constitutions, statutes, regulations, by-laws, declarations, adjudicative judgments, songs, carvings, textiles, dances, wampum belts, scrolls, and petroglyphs.

Law is a human tool – a resource for reasoning and acting.
In contemporary Canada, political and legal language seems generally devoid of references to love.
We learn differently when we change the physical context; engaging all of our senses.

I found my source of strength.
Outside.
Beware the dangers of a single story.

 

2.     So…

 

It might seem obvious that when you teach courses, like I do, on Family Law and Queering Law, that love is something that needs to be addressed, if not integrally.  Love is love is love, they say.  But the question I am trying to answer is not just about language for talking about the physical dimensions of love, and it is not just for the “pink ghetto.”  The question I am trying to answer is as relevant to Constitutional Law, or Securities Law, for courses taught transsystemically, in the field and on the land, as online, or in clinics.  What is experiential learning?

At this moment, where it seems like we are living in a universe more prone to hate, than to love, this text gently demands that we stop and listen to the seven Grandmother/Grandfather teachings. It asks us to see how love inhabits our public spaces, informs s. 35 of the Constitution and is essential to readings of treaties and other texts.  It is also wary and critical of love’s place in political life.  Like law, love cannot be forced, its powers too are easily abused.[9]

Beware the dangers of a single story.[10]

What I take away from this book about legal ethics and the legal imaginary, is that love is complicated, but deeply woven into the fabric of law.  To not find a way to bring love into legal education is to miss offering students another lens of analysis, another way to read texts, another way to deepen their skills for how to work through and across trauma.  To enhance the ethical imaginations of our future ethical professionals.  Lots of work to do, though to see love as law.

At this moment when it seems that people are more likely to build walls to keep us out, this book deconstructs those walls, metaphorically and actually, to move students out of the classroom and onto the land, or into community, or into their bodies, or inside an idea.  It is thick with stories of how these 7 laws are in action at different law schools across the country, of how deep learning results from bodies engaging with law in unexpected ways and places. In field schools, in downtown Victoria, under bridges in Vancouver.[11]

John’s stories are of the relationship between law, land and learning; I aim to take up those challenges, playing with the notion of what it means to be outside.

By pushing, conceptually, what might happen if we are to weave thick notions of love into a legal education, John revisions what experiential education means.  And, in so doing, offers ways to respond to the TRC, to MMIWG, to #MeToo.  Drawing deeply on examples of placed-based teaching spaces hope is created for alternative notions of where learning happens.  More ways to think about moving students out of their heads and into their bodies to become the ethical professionals we believe they can be.

Found poetry, art bombs, finding Indigenous plants, image theatre, playreading, theatre of the oppressed, baking, dancing with dichotomies, mask and mural making, movies.[12]

I think the answer is: be brave, and things will happen.

When you don’t know where to turn, open this bundle – the laws within will guide you, even if they don’t settle every question.

 

[1]              This presentation was part of a panel dedicated to discussion of John Borrows’ most recent text, Law’s Indigenous Ethics (Toronto: University of Toronto Press, 2019).  Thank you to Freya Kodar for organizing, to my co-panellists, Pooja Parmar, Christine Sy, Jean-Paul Restoule and John Borrows, and to our audience for their rapt attention and feedback.

[2]              bell hooks, Teaching Community: A Pedagogy of Hope (London: Routledge, 2003) at 134.

[3]              Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law” (2012) 8 Annual Review of Law and Social Science 161-181 at 175.

[4]              See Sharon Cowan, Chloë Kennedy, Vanessa E. Munro, eds., Scottish Feminist Judgments: (Re)Creating Law from the Outside In (Hart Publishing, 2019) at 1, citing Patricia Williams, The Alchemy of Race and Rights ( Cambridge , MA , Harvard University Press , 1991) at 150.

[5]              Borrows, supra note 1 at 27.

[6]              Borrows, ibid., “Nitam-Miigiwewin: Zaagi’idiwin (Gift One: Love), Love: Law and Land in Canada’s Indigenous Constitution” at 24-49.

[7]              Borrows, ibid., “Naano-Miigiwewin: Nibwaakaawin (Gift Give: Wisdom), Wisdom: Outsider Education, Indigenous Law, and Land” at 149-175.

[8]              I have been inspired by the work of Kate Sutherland to bring poetry into the law school classroom.  This has included reading poetry, but also using creative writing techniques to inspire students to write poetry; drawing on resources from their legal training.  Found poetry is one of these techniques, essentially creating a poem by taking words, phrases or passages from other sources and reimagining them.  The poem that follows is comprised of words, phrases and passages from Law’s Indigenous Ethics.  For a discussion by Kate Sutherland of writing poetry in the law school classroom see: Kate Sutherland, “Law, Poetry, and Pedagogy: Reading and Writing Poems in the Law School Classroom” in Christina A. Corcos, ed., The Media Method: Teaching Law with Popular Culture (Durham: Carolina Academic Press, 2019) at 399-414.

[9]              Chapter One is a love story; including interrogation of how love informs Canadian common law and Canadian Constitutional Law and how it sits within the seven Grandfather/Grandmother teachings of the Anishinaabe.

[10]             Borrows, supra note 1 at 28.

[11]             Chapter Five is a curricular model; with stories of how land-based teachings have been employed at several law schools across Canada by Indigenous and non-Indigenous scholars including folk at the University of Victoria, the Peter A. Allard School of Law, and Osgoode Hall Law School, amongst many.

[12]             These are some examples of “outsider” pedagogies that I have tried to take up in my courses and seminars at UVicLaw.

Art, Law, and Community: Truth and Reconciliation through Art

By: Julie Tucker & Gemma Smyth

28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.[1]

83. We call upon the Canada Council for the Arts to establish, as a funding priority, a strategy for Indigenous and non-Indigenous artists to undertake collaborative projects and produce works that contribute to the reconciliation process.[2]

Photo credit Nadja Pelkey

How can community collaboration address the Truth and Reconciliation Commission’s 94 Calls to Action? How can we more meaningfully embody and integrate the 94 Calls to Action in a teaching/learning practice for art and law students alike? How can community be meaningfully incorporated through an embodied, community-engaged practice?

Through a partnership between the School of Creative Arts (SoCA), the Faculty of Law and the Arts Council Windsor Region (ACWR), artist/maker Barry Ace (Anishinaabe [Odawa])[3] was invited to participate in the inaugural Art + Law Residency. Ace developed an original work entitled, “As Long as the Sun Shines, The Grass Grows and the River Flows” that incorporated multidisciplinary understandings of the Truth and Reconciliation Commission’s Calls to Action. The Residency and exhibition commenced during the World Indigenous Law Conference at the University of Windsor. Organized by Professor Beverly Jacobs, the conference was a collaboration between settlers and Indigenous artists and lawyers, as well as university and community-based organizations.

Photo credit Gemma Smyth

Over the course of two weeks, Ace worked with dozens of participants to create a 54-panel work that allowed participants to write, “bead,” and thus take artistic responsibility for one of the TRC Calls to Action. Ace likened his work to a “contemporary wampum”, with each participant actively engaging in self-examination, discussion, and artistic practice around individual Calls to Action. Each small group session comprised a group of between 5 and 20 students, lawyers, community members and artists.

Picture3
Photo credit Nadja Pelkey

Ace contextualized the project by first orienting participants to his selected works touching on aspects of residential schools.

“Debwewin” (Anishnaabemowen for “truth telling”) includes tiny shoes woven and enmeshed in rope symbolizing lost Indigenous children and culture.

“Memory Landscape” evokes images of Ace’s adopted brother, and a photo montage maps the geography of a residential school attended by his great aunt.

Picture4
Photo credit Czarina Mendoza

Ace’s storytelling connects the painful memories of his family members to his art, revisiting photos and geographies that embody the residential school experience. There are inherent risks in undertaking a project that can trigger trauma in both the audience and maker. It was a significant risk in this particular project because of the small group work, discussion, and emotional engagement required. Ace explicitly addressed this risk with participants. His experience working in the community, his thoughtful and meticulous making, and his careful, individualized engagement with each participant navigated potential harm while leaving space for lingering, difficult questions.

Before beginning their work together, participants were required to relinquish their rights to the piece for $1.00 (a “loonie”) by signing a contract.

Excerpts of the contract read, “In consideration of the sum of One Dollar (1.00) and other good and valuable consideration the receipt of which is hereby acknowledged, I, _________, whose address is ______ release and discharge Barry Ace, his or her executors, administrators, successors and assigns from all actions, suits, debts… in respect of my participation in the creation of a work of art entitled ‘As Long as the Sun Shines, The Grass Grows and the River Flows’…”

The act of giving up one’s rights recalled the way contract law is used in modern and historical contexts to deprive people of their rights – often without knowing exactly what they are giving up. In this case, participants were required to sign this contract without fully knowing its outcome. In receiving a shiny new dollar, the exchange is reminiscent of the nominal amount of money that is issued on Treaty Days across Canada.

Because this exchange was a condition of participating in the project, it was particularly poignant for students required to be at the session as part of their class assignment. This work therefore referenced the complex relationship between Canada and Indigenous peoples which permitted a narrow range of options – acquiescence, assimilation or death.

Photo credit Gemma Smyth

After this exchange, participants then chose a Call to Action and wrote it in HB pencil on vellum paper. Vellum is translucent and allowed each participant’s unique handwriting to appear, even as it was rolled up and tied. Using the materials that Ace often favours, the participants then mixed floral and geometric beadwork with electronic pieces including capacitors and resistors, to bead floral designs onto 56 velvet surfaces. Ace describes his choice of materials as referencing the “cultural continuity, bridging the past with the present and the future, and as a demonstrable act of nationhood, resistance and modernity.”[4] Ace had pre-prepared the surfaces with the general pattern he wanted and affixed tobacco ties above the floral pattern.

Both Ace’s artwork and the residency respond to Call 83 and 28. Ace’s contemporary wampum belt engages traditional cultural beading practices but also modern electronic components, reflective of the materials of present day communication – the small bits, bytes and wires that make our devices work. Wampum is legal document beyond words and time. It is meant to last and to be remembered. Because of Ace’s understanding of material culture and experience working in community, he was able to teach and to share through his own process of making. Through his teaching and practice, participants were able to embody the Calls as artistic expression, personal commitment and lived experiences. “As Long as the Sun Shines, The Grass Grows and the River Flows” will be exhibited at galleries in Canada. Posted next to the work are the names of the participants, which for many was a meaningful, public connection and acknowledgment of their participation. Ace’s experience directed the collaboration successfully and his input will shape how the project moves forward.

In the following reflections, two of the organisers of this project – an Indigenous artist/ cultural worker and settler lawyer/professor – reflect on the partnership and its potential for future collaborations between lawyers and artists to bring deep interpretative, embodied and enacted meanings to the Calls to Action.

 Julie

My heritage is both settler and Lunaapeewi from the Munsee-Delaware First Nation. I am both an artist and cultural worker. Currently, I am the Director of the Arts Council Windsor and Region and a founding member of the Munsee-Delaware History and Language group, developing its first project through the recently defunded Indigenous Culture Fund courtesy of the Ford Government. This year is marked by the UN as the Year of Indigenous Languages.[5] Language embodies the culture, law and ways of being. This and other acts by both the Federal and Provincial governments are clear departures from the work of reconciliation. The CBC’s website “Beyond 94” tracks the progress of the 94 calls to action: 10 are completed, with 19 in progress, 33 proposed and 33 not started[6]. I have come to learn that we all hold the responsibility to ensure this work continues. In 2016, I was in attendance of a Night for Chanie on the 50th anniversary of his death, which honoured Chanie Wenjack and all former students of residential schools, organized by imagineNATIVE Film and Media Arts Festival. Significantly, Senator Murray Sinclair spoke during the event and issued a directive to the whole audience to answer one of the Calls to Action by whatever means available to them. I felt and continue to feel a deep responsibility to develop relevant and meaningful programming to all people from across Turtle Island who call this region home. My interests are in projects that are collaborative, interdisciplinary and opportunities for artists to be engaged in meaningful work.

The responsibility I feel is bred from the colonial structures of which I have learned, worked and have benefited from. David Garneau states:

The government apology and the work of the Truth and Reconciliation Commission are important, but the deeper work of conciliation will be among individuals who re-cognize themselves as also other than agents of the State. Settlers visiting these permanent sites of conciliation do so as individuals who are conscious that their institutions perpetrated systematic abuses designed to assimilate or destroy Aboriginal people so they could take their land[7].

Gemma asked me, “What is the significance of collaborating with the Law School and its faculty?” There are many things I would like to say here, but I think this collaboration is just one of many ways to tell the important stories that need to be told along with a way to support that telling. I don’t think institutions like universities are always aware how artists need to be supported in their work. As a cultural worker my role is to advocate for opportunities that benefit artists. I hope to offer an experience that is valuable to their practice.

Lastly, when I experienced Barry’s work, it allowed me to reflect on my Grandmother’s stories of Mount Elgin Residential school. I think there are many stories that need to be heard. And I know that one day you will know them because an Anishanaabe/Haudenosaunee /Lunaapeewi artist will have the opportunity and the means to tell you in the right way.

Gemma

As a second- and fourth-generation settler of German and Irish ancestry living on Anishnaabe territory, this collaboration brought renewed meaning and urgency to the Calls to Action, and clarified anew the complicated complicity of the law, legal education and myself in ongoing colonialism. By profession, I am an academic, lawyer and mediator. I am fortunate to learn from colleagues whose academic and lived experience challenge me to remain alert and conscious about the ongoing impacts of colonialism and my complicity in its ongoing metamorphosis. This project was inspired by the work of my colleague Professor Jeff Hewitt, whose academic work challenges lawyers to reconceive of art as law. I found this collaboration incredibly impactful and would encourage other law schools to reach out to their communities and art schools.[8]

For lawyers, intellectualization of pain is our stock-in-trade. This perhaps is the danger of simply reading the TRC Calls to Action without embodying or enacting them, or without engaging with the affective elements of cultural genocide. Ace’s work accessed these pedagogies. He personalized the TRC through his own stories; he crafted installations and images that made pain real in way that the common law avoids. Yet understanding this pain is key to effective legal representation. The participants engaged with one another in a collaborative, community-based learning environment which allowed for interdisciplinary discussions and uniquely co-created meanings.[9] In the session I participated in, for example, art students, practicing artists and an Indigenous community member created a mini-conversation group. Our discussion became intimate quickly as we discussed the TRC and our own experiences with Ace’s work. The beading practice allowed a shared experience of making/ creating. My own inefficiency and inelegance with beading was in sharp contrast with practicing artists whose beautiful beading was a healthy dose of professional humility. As we discussed the role of law and lawyers in the residential school settlement, we quickly came to the limits of law to address pain. For me, the practice de-emphasized over-intellectualization and encouraged embodied presence. During the final show launching Ace’s work, participants felt deeply invested in the work and had formed relationships both with one another and with the artist. Our fingerprints were literally imprinted onto the velvet and our handwriting was visible through the vellum. For me, Ace created community-through-truth-telling – offering painful imagery and narrative without emptiness, offering tangible connections between the past and present.

Acknowledgement

This project was possible because of the work (paid and unpaid) of a large group of people. Students in the School of Creative Arts (SoCA) were guardians and hosts in the gallery space. Rod Strickland and Lucy Howe were experts in organizing the project, supporting the creation and hanging of the work, hosting the Artist and solving the inevitable challenges that come with making. Vincent Georgie and Chris Waters were strong institutional supporters and embodied fruitful interdisciplinary co-existence. Jeffery Hewitt was the creative brain behind this initial idea, with co-generative effort with Julie and Gemma. SoCA technicians Nadja Pelkey, who took photos and prepared the space and Victor Romano who runs the SoCA Gallery, while Czarina Mendoza lent her photography skills to the project. Michelle Nahdee and Beverly Jacobs supported the project alongside the World Indigenous Law Conference. The work took place on the land of the Three Fires Confederacy, Anishinaabe territory.

[1] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: National Centre for Truth and Reconciliation) at 28.

[2] Ibid at 83.

[3] Barry Ace, Barry Ace (website), online: <http://www.barryacearts.com/current-exhibitions/&gt;.

[4] Barry Ace, “Artist Statement”, Barry Ace (website), online: <http://www.barryacearts.com/artist-statement/&gt;.

[5] 2019 Indigenous Year of Indigenous Languages (website), online: <https://en.iyil2019.org/&gt;.

[6] “Beyond 94: Truth and Reconciliation in Canada”, (19 March 2018), CBC News, online: <https://newsinteractives.cbc.ca/longform-single/beyond-94?&cta=1&gt;.

[7] David Garneau, “Imaginary Spaces of Conciliation and Reconciliation” (2012) 46:2 West Coast Line 74 28 at 38.

[8] Indeed, at least one other law school has done meaningful work in this area. See Ruth Buchanan & Jeffery Hewitt, “Treaty Canoe”, (2019), Osgoode Digital Commons: Articles & Book Chapters, online: <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3610&context=scholarly_works>; Ruth Buchanan & Jeffery Hewitt, “Encountering Settler Colonialism Through Legal Objects: A Painted Drum And Handwritten Treaty From Manitoulin Island”, (2017), Osgoode Digital Commons: Articles & Book Chapters, online:  <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://scholar.google.ca/&httpsredir=1&article=3668&context=scholarly_works>.

[9] See Sarah Buhler, Priscilla Settee & Nancy Van Styvendale, “’We Went In as Strangers, and Left as Friends’: Building Community in the Wahkohtowin Classroom” (2015) 1:2 Engaged Scholar J 96; Sarah Buhler, Priscilla Settee & Nancy Van Styvendale, “Teaching and Learning About Justice Through Wahkohtowin” (2014) 4 Annual Rev Interdisciplinary Justice & Research 182.

Loving, Working, and Living on Stolen Land: People of Colour, Settler Colonialism & White Supremacy

This past August, I participated in the Blanket Exercise organized by the Faculty of Law University of Windsor with our incoming law students. The narrative exercise, designed by KAIROS (though slightly modified by Windsor Law), is intended to educate participants of the brutal genocide of Indigenous Peoples of Turtle Island. It illustrates how they were treated by European settlers. The exercise more importantly demonstrates the ensuing effects of the colonial policies and practices of the Canadian white supremacist settler state on Indigenous Peoples.

Windsor Law has included the Blanket Exercise for the past two years as part of our ongoing efforts to implement the Truth and Reconciliation Commission’s (TRC) Calls to Action. In volunteering to help with the exercise, I indicated that I would be happy to take on any role the organizers needed. Subsequently, I was designated the role of a European settler.

At first, I was dismayed. I am a queer Person of Colour, a Tamil refugee to Canada from the Northern Province of Sri Lanka. Now I would have to pretend to be a white European settler?

My apprehension with playing the role of the European settler opens a window into the role of People of Colour not only in the legal profession but in the ongoing settler colonial project. I am a refugee settler of colour living, loving, and working on the traditional territories of the Three Fires Confederacy. I also own a house and land in Windsor, Ontario. The land is Anishinaabe land.

As we move forward in implementing the TRC’s Calls to Action I find myself engaged in deeply complicated conversations. These conversations are animated by what Professor Jeffery Hewitt (a colleague at the Law School) has framed as the anti-violence work of decolonizing our disciplines, our institutions, our private spaces, and our lives. Communities of colour are also responding to the Calls to Action in our own ways. I imagine there are two strands of thought within the communities of colour about the recent attempts to decolonize and indigenize the academy (and other spaces). Though likely many more that I still have to engage with and learn about.

The first strand is hopeful and helpful: we are finally addressing the white supremacy that many People of Colour and our community members have had, and continue, to face. It is great that we are focusing on the First Peoples of this land, their experiences with the criminal justice system, the prison industrial complex, and how the legal system has so abysmally failed Indigenous women, are a few examples. This hopeful and helpful framing belies an uncomfortable truth articulated by Professors Bonita Lawrence and Enakshi Dua in their 2005 essay “Decolonizing Antiracism” on the erasure of Indigenous Peoples from antiracist practices, theories, and analysis. They argue that People of Colour have not taken seriously the impact of colonization on Indigenous Peoples and this has resulted in a bifurcated set of anti-racist practices. Building from this framing, we can comfortably note that People of Colour, in various gradients and iterations, continue to benefit from the violence of colonization of Indigenous Peoples and their respective territories. People of Colour are full-fledged participants in the systems of oppression that continue the process of settling on Indigenous lands and the genocide of Indigenous Peoples (by purchasing Indigenous lands, for example). This strand of thought then is about dismantling white supremacy in solidarity with Indigenous Peoples.

The second strand is even more complex, if not nefarious: How can we argue that People of Colour are complicit in the ongoing process of settlement? Are People of Colour not marginalized too? Do People of Colour and their marginalization not need the same kind of attention that is being garnered towards Indigenous Peoples on this land? Of course, the very framing of People of Colour as a discrete and homogeneous category is contested. Descendants of former enslaved peoples in what is now Canada do not bear the same kind of complicity as ‘new arrivants’ and they do not benefit in the same ways either (see Eve Tuck, Allison Guess and Hannah Sultan).

From my own perspective, I was a refugee that fled a war-torn country in the late 1980s with my mother. We had to leave our village of Vilan near Jaffna, Sri Lanka because the Tamil Tigers had set up a camp next door (quite literally). We were afraid of the Sri Lankan government helicopters and the bullets and bombs they dropped on us. So, we fled to Colombo first, and then to Canada and claimed asylum (via various other safe ‘third countries’) in search of a safer home. Of course, the role of Western countries and their allies in the bloody war in Sri Lanka should not be forgotten. The colonization of Ceylon (what is now known as Sri Lanka) began with the Portuguese, the Dutch, and then the British. In my scholarship, I have argued that this conflict in large part erupted as a result of the policies of former colonial masters. Moreover, the bombs and bullets used in the Sri Lankan conflict were produced by the military industries of the former colonial powers, who profited.

The questions I have raised are tremendously difficult for me to unpack and I confess that I do not have a complete answer. As I continue to learn about the Anishinaabe and the Three Fires Confederacy in whose territory I am now a guest, I cannot ignore the location of our new home that I recently purchased with my partner – as though broadcasting to me every day to remember. Our cross road is Mohawk Street. We park our car on Mohawk street. I see the road sign each morning as I leave for work (the University of Windsor is also located on Anishinaabe land). When I bike to work, I take Seneca street. My office is in the Ron Ianni Law Building (named after a former Windsor Law Dean), overlooking both the United States (more colonized land), and Assumption Church, which is just in front of the law school. The church’s history is complicated at best and is tied to a land claim (which encompasses vast parts of the area) by Walpole First Nation.

Irrespective of how I got to Windsor, Ontario and my various struggles to reach this point, I cannot ignore the fact that I live, work, and love on stolen land. This is a difficult fact to digest for People of Colour. Shaista Patel has eloquently captured this sentiment when she writes: “While we may share some histories, it is critical for us Muslims and other non-indigenous peoples here to not fall into the trap of equating the struggles of Muslims with that of Indigenous Peoples in white settler colonies, where Indigenous Peoples who have been living here since time immemorial have now been outnumbered by whites through illegal land grab, dispossession, and outright genocide”.

White supremacy on Turtle Island is built on what the TRC has coined the twin justification for the colonial and imperial violence: “In short, it was contended that people were being colonized for their own benefit, either in this world or the next”. Through violence and forceful removal of Indigenous Peoples, European settlers built the tapestry of infrastructure that would become Canada and the United States. At times, the process of settling was based on the labour of enslaved peoples and indentured workers from various parts of the world.

Even though I have thought about colonization and settler colonialism in various ways, it is easy to succumb to the divide and rule policies imbedded within our societies built upon white supremacy. The European settlers built this vast infrastructure for one purpose, and one purpose alone: to eliminate Indigenous Peoples and replace them with white settlers. The tapestry that has been carefully crafted then encompasses various imbedded codes of performance. These include the need for recognition of diverse forms of oppression through legal doctrine like antidiscrimination laws.

Western law works, so I have been taught, to create equality between and amongst various peoples. But the demand for equality is left up to the different marginalized groups to articulate. Human rights violations are then to be decided by decision makers invested in white supremacy. Tribunals and courts are set up by the white supremacist settler state with decisions makers devoted to maintaining white supremacy. Indigenous scholars have described this phenomenon as the politics of recognition. Inevitably, this has caused a competition between different marginalized communities, once vividly captured by Professor Patricia Williams as “oppression Olympics”.

My unease with playing the part of a white European settler setting up white supremacist infrastructure in the Blanket Exercise then goes to the root of the second strand of thought (that I referenced at the start). It is a reaction to the recent attempts to implement the Calls to Action of the TRC. The uneasiness is tied to what Devon W. Carbado and Mitu Gulati have coined as “acting white”. Those from the margins seeking recognition will inherently engage in oppression Olympics. It is a competition for resources and space within a market of adjudication. The market built on white supremacist values decides whose discrimination matters more. Oppression Olympics ignores and obscures the historical context by which white supremacy became a reality. Moreover, oppression Olympics hides the fact that marginalized groups are in fact seeking redress from those that continue to oppress and discriminate. This is learned behaviour, dished out via our educational institutions (including law schools).

In a recent talk to researchers at the University of Windsor on decolonizing research methodologies, Professor Hewitt challenged participants to reflect on our own complicity in the ongoing process of colonization. He suggested that we engage in greater self-reflection and pay closer attention to how our own systems and behaviours deeply impact and contribute to the ongoing colonization of Indigenous Peoples.

By engaging in oppression Olympics, People of Colour are helping to maintain white supremacist structures. These structures continue to oppress Indigenous People and People of Colour. We can however, as People of Colour committed to dismantling white supremacist practices, work with Indigenous Peoples on our respective campuses, and in our respective spaces and places. We can foreground Indigenous Peoples’ struggles as a means to achieve our own emancipation. By participating in the Blanket Exercise, building thick relationships, learning more about the lands we inhabit, and supporting the TRC Calls to Action through our words and our actions, we can work alongside Indigenous Peoples in dismantling white supremacist practices for everyone’s benefit, “either in this world or the next”.

Sujith Xavier, Faculty of Law University of Windsor (I am grateful to Amar Bhatia, Fathima Cader, Tyler Dunham, Jeffrey Hewitt and Adrian Smith for their comments)

Xwelíqwiya – The Life of a Stó:lō Matriarch

XweliqwiyaIn a recent conversation, Gillian Calder commented on how helpful she has found the IFLS blog (thanks Sonia Lawrence at Osgoode!), and particularly those posts titled “What we are doing/reading/thinking”.   These posts point/link to interesting texts (without worrying about doing the full out suggestion of how those texts might be used).  The posts do serve to get the creative juices running.  Gillian suggested that folks might consider doing something similar with #ReconciliationSyllabus.

In that spirit, I thought I would share some thoughts on a wonderful new book on my bookshelf: Xwelíqwiya – The Life of a Stó:lō Matriarch.  While I haven’t fully sorted out full teaching materials using the book, I am convinced that it is a powerful resource for those thinking about TRC work in the law school.

The book is about the life of Rena Point Bolton.  Rena Point Bolton is, amongst other things, the mother of Steven Point, British Columbia’s first Indigneous Lieutenant Governor.  Rena is a force of nature herself.

The word “Xwelíqwiya”  in the title is her name in Halq’eméylem , the language of the Stó:lō people.

As the books explains, Stó:lō is the Halq’eméylem word for “river”, and the Stó:lō are the river people. In this case, the lower Fraser River.  In the summer, making the trip from Victoria to the Shuswap, the drive through Abbotsford, Harrison Hot Springs and Chiliwack is in fact a drive through Stó:lō territory (or, Stó:lō tém:éxw).

4159W9VRBHL._SX372_BO1,204,203,200_
Another great resource!

As is all too often the case, the first challenge for me was the limits of my own limited language fluency.  That is, the title.  I was just not sure how to pronounce Rena Point Bolton’s name in Halq’eméylem!  Richard Daly, the other co-author, gives a good approximation of how to do it, while acknowledging the challenges for English speakers, since nearly half of the sounds in the Halq’eméylem language don’t exist in English.  But the book invites the reader to nonetheless plunge in and try.

As an aside, Halq’eméylem has 8 different sounds for what in English is the letter “K”! (click here for a link to an interesting article on the expressive qualities of the language, and here for a link to the First Voices, website, where you can listen to and learn words in the language).  I found myself heading to my bookshelf to flip through my copy (well… the copy I lifted from my mom’s bookshelf?) of the award-winning Stó:lō-Coast Salish Historical Atlas.   It’s another great related resource to check out (click here for a link to a “good reads” review of the book).

But, back to Xwelíqwiya.  I have been practicing saying her name outloud, trying to put the sound of her language into my mouth.   I am still processing the book, but have found myself bringing it up in conversation on a daily basis since completing it.   There is so much in there that is interesting.  For today, here are a few comments.

Firstly, I have been increasingly looking for biographies and life histories of women.   There are some out there, but not nearly enough.  And there are CERTAINLY not enough books out there that engage with the lives of Indigenous women.  This book does that, situating Rena’s life in the flow of both Stó:lō history, and colonial history.  It does so in a way that engages with questions of land, language, lineage, class, marriage, child-raising, economy, culture, politics, and change.  Law is never far from the surface.

What was so remarkable was the way that the book was able to follow this one woman’s life over a period of 90 years in a way that personalized questions of history and politics.  Her story is told in a way that let me both have a sense of proximity to her “voice”, and simultaneoulsy contained the kind of “distance” necessary for a measured appreciation of the depth of her actions, her contributions, and her own learnings.

Second point?  This book left me reflecting on the power of its  two-voiced authorship.  This book was written collaboratively with social anthropologist Richard Daly.  At the beginning of the book, there is a discussion of the practice of joint-authorship used here.  They situate this decision against the background of Salish practices of legal governance: in the context of potlatchs and other important governance work, families will hire a Speaker — that is, someone who will speak publically on behalf of the family (rather than having the family themselves do the speaking).  They make visible that Richard Daly’s role in the project was theorized in this way — his role was very much like that of a Speaker.  There is much to be talked about in terms of the way the authorship of this book is thus an example of Salish practices of legal governance, enacted in a contemporary context, with a non-Stó:lō writer being asked to play a part in what is very much the operationalization of a Stó:lō way of living.

This book is largely written with future Stó:lō readers in mind (Rena says this explicitly), but it is also written in a way that invites the non-Stó:lō reader to join, to listen, and to begin to feel the different rhythms of Stó:lō  life, and to appreciate the power of culture, and of women’s place (historically and in contemporary society) in maintaining, promoting and developing social and legal life.  There is a section at the beginning that talks about the different conventions of reading for Stó:lō and settler readers, and what each can know about the other in order to have a productive conversation.  That was really helpful!

The book itself contains so much nuance and complexity about questions of identity, and of pragmatics, and of strategy.  It helped me get a better appreciation of the many ways that we are all actors in history, and of the many pathways that women have walked, and how sometimes those paths circle back to beginnings.  It also explicitly took up questions of silence — of how Indigenous people (and Indigenous women in particular) have experienced both silence and silencing, and of the politics of silence at different moments in time.  It asks us to understand the different meanings of silence, and to ask when the time might come to change some of our strategies.  Really powerful.

Lots to be said about this book, which I think is another of those must-have books.  It is certainly a true gift to those who are seeking to take up the challenge of the Truth and Reconciliation Commission for all Canadians to increase their cultural knowledge. Indeed, six of the Calls to Action place this goal at the centre of calls to “professionals”.  We see acknowledgement of the need for cultural competency in the six calls aimed at:

CallsToActionPDF

  • 23 – Health Care Professionals
  • 24 – Medical and Nursing Schools
  • 27 – Law Societies
  • 28 – Law Schools
  • 57 – Public Servants
  • 92 – The Corporate Sector

I came away from the book having had a taste of what it is to live within a Stó:lō life-world, and the beginnings of an appreciation for the rich history that is written on the land that I live on.  I also have an appreciation for the gift of story, and for this book’s invitation to understand the power and possibility of beginning to live in right-relation.  I love this book, and will be returning to it!  Take a look, and see what you think.   Or, maybe write us a post about something you are looking at these days?   Sharing what we are reading is one way to help us think about the project of decolonizing, and of diversifying the reading lists (particularly the required reading) in our courses.

 

 

 

Gladue reports in the classroom: a group project from the Nunavut Law Program

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Koojesse Inlet, Iqaluit in late September 2017

Benjamin Ralston – benjamin.ralston@usask.ca

What follows is a brief description of a group project that I put together for a course during the first year of the University of Saskatchewan’s Nunavut Law Program. While the context in which this assignment was created is unique, I hope this post might help spark others’ imaginations as to how a robust discussion of the Gladue analysis might be brought into the classroom.

Unique context

I was part of the team that delivered the first year curriculum of the Nunavut Law Program (NLP) during the 2017/2018 academic year. The NLP students are only now completing the ordinary 1L course load of their Juris Doctor degrees. The first year of their four-year program was something more sui generis. First year courses in the NLP included: Legal Process; Inuit History & Government Relations I & II; Introduction to Research & Research Methods; Writing & Communication I & II; Nunavut Land Claims Agreement I & II; Introduction to Professionalism; and Conflict Resolution & Reconciliation.

This group project was used as an assignment for the Introduction to Research & Research Methods course that I taught in the fall term of 2017. The course provided a general introduction to academic research, as well as an introduction to the unique ways in which research is conducted in legal studies and practice. It canvassed the formulation of research questions and plans, literature reviews, research ethics, methods and methodologies, and some of the tools available for legal and academic research. As the course preceded any black letter coursework, the focus was on ‘law-adjacent’ research rather than standard legal research.

The assignment

The students were assigned to create mock “Gladue reports” in groups of five. A Gladue report is a form of pre-sentencing report for Indigenous offenders that provides sentencing judges with the types of information that they need in order to fulfill their obligations under R v Gladue, [1999] 1 SCR 688, Sentencing judges are obliged to consider:

  1. The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and
  2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage.

I put together this Gladue report assignment in order to have students practise their research skills on a project that was both concrete and clearly relevant to their overall legal education, but without requiring much familiarity with black letter law and legal research. It was an attempt at a problem-based learning exercise that would be open-ended enough to allow for creative responses from each group based on their own background knowledge, perspectives, and interests. I also wanted to encourage them to reflect on what they were learning in their Inuit History & Government Relations course in context to legal process.

The project was assigned on the first day of class. Each group was given a set of facts about a fictional character from one of the regions of Inuit Nunangat: Inuvialuit, Nunavut, Nunavik, or Nunatsiavut. Four of the fictional characters were Inuit and one was a fictional Sayisi Dene woman living within Inuit Nunangat. The fact scenarios for each group were meant to nudge the students in the direction of exploring a diversity of Gladue factors. Some but not all of the fact scenarios directly referenced residential school attendance. Others pointed students in the direction of examining how the Gladue analysis might relate to community relocations, Fetal Alcohol Spectrum Disorder (FASD), the child welfare system, out-adoption, and contemporary racism.

One major constraint on the project was that it would be difficult for students to employ the primary research method used by Gladue report writers: in-person interviews with the subject, as well as their family and community members. Still, we covered qualitative research and interviewing skills in the course and many students ended up interviewing local lawyers or individuals involved in restorative justice initiatives in order to flesh out the available alternatives to incarceration.

Students were encouraged to explore a wide variety of research methods by looking at peer-reviewed academic publications, grey literature, reports from commissions of inquiry, and case law to find information of relevance to the Gladue analysis. In terms of precedents, I provided students with access to three redacted examples of Gladue reports from British Columbia, Saskatchewan, and Ontario that included reference to secondary source research. It is worth noting that not all Gladue reports contain extensive secondary source research so I was selective about the precedents I obtained for this purpose. I wanted to ensure that the precedents were at least partially replicable in the classroom, as opposed to reports that are solely the result of interviews. I also provided the students with three examples of sentencing decisions that I felt clearly address both prongs of the Gladue analysis: R v Drysdale, 2016 SKQB 160; R v Christmas, 2017 NSPC 48; and R v Callihoo, 2017 ABPC 40.

The Gladue report project was also supported by guest lectures throughout the term. For example, Anisa White, Chairperson of the Gladue Writers Society of British Columbia, lectured the class via Skype on how Indigenous legal traditions can be incorporated within Gladue reports—a topic she has previously addressed elsewhere. Our cultural advisor, Aaju Peter, led a discussion of excerpts from Linda Tuhiwai Smith’s Decolonizing Methodologies to get students to think critically about the research process. During Restorative Justice Week, we also had representatives of the Department of Justice come in to speak to the students about restorative justice programming in Nunavut, including the Iqaluit Justice Committee. This was a happy coincidence. And while I was unsuccessful at arranging a guest lecture from someone involved in a Gladue report process elsewhere in Inuit Nunangat, a well-timed news article helped demonstrate the reports’ potential relevance to Inuit regions and was shared for discussion. Note that unlike Nunavik, Gladue reports are rarely if ever used in Nunavut courts.

The results

This group project was assessed through a combination of the final mock Gladue reports, group presentations on their work-in-progress in advance, and reflective essays mid-way through the project. The plurality of assessments allowed me to weigh in on their progress well in advance to see how the course materials were being applied in context to the assignment. This was a research class after all.

There is a broad scope as to what types of information may qualify as relevant to a Gladue analysis. While most Gladue reports are largely focused on a community’s history, the individual’s history, and what programming is available in the community, they may also engage with social science research and information on Indigenous legal traditions, among other things. I encouraged students to prepare their reports in response to the Supreme Court of Canada’s directions in R v Gladue rather than feeling constrained by the redacted precedents I provided, which were themselves diverse in their approaches and content in any event.

The students clearly took this advice to heart. One of the reports provided a very detailed treatment of how FASD relates to sentencing and the Gladue analysis, clearly linking this to the limited programming available in Nunavut. That same report also provided a detailed community history of Iqaluit, summarized in large part from the Community Histories component of the Qikiqtani Truth Commission’s Final Report. Other students contributed sections that addressed the impacts of the child welfare system on Indigenous children, for example, or that provided specific and detailed statistical information on how systemic discrimination manifests itself in specific communities. One report provided a detailed discussion of the impacts of high arctic relocations on Inuit in Nunavut and Nunavik. This was based in part on secondary sources but also included interviews with family members of one of the students in this group who experienced a relocation firsthand. More than one of the students’ mock Gladue reports touched on Inuit legal traditions as well.

The students’ reflection papers provided other interesting insights into how the Gladue analysis might be adapted to the realities of Inuit Nunangat. Several students raised concerns with the lack of Inuit-specific research available on the intergenerational impacts of the residential school system, community dislocation, and colonization. Many were uncomfortable relying on research that made broader generalizations about Indigenous experiences while being focused on First Nations rather than Inuit experiences. This was a good example of what we learned in the course about the identification of research gaps through a literature review. One student made a persuasive argument for the need to modify the name, form, and content of Gladue reports to better reflect Inuit culture and perspectives, linking this to course readings from Cindy Blackstock and Linda Tuhiwai Smith. Another who had a background in the criminal justice system persuasively argued that emphasis on community and familial dysfunction in a Gladue report could be coded as risk factors that lead to even greater levels of overincarceration for Inuit. Needless to say, I learned as much if not more than the students through administering this project.

Reflections for the future

Overall, I think this assignment was a success. Each group was able to demonstrate research skills on a project that was open-ended and interest-driven. There is enough complexity and depth built into the Gladue analysis that each group had the freedom to approach the assignment from unique angles and perspectives. The focus of the project was on developing and practising research skills, but this was accomplished in a way that I believe to be at least partially responsive to Call to Action #28.

On the other hand, the students’ inability to extensively engage in the interviewing process was a significant limitation. All groups conducted interviews regarding community-based resources that could be put forward as alternatives to incarceration and at least one group conducted interviews for the community history component of their report. Yet the investigation-type interviews conducted by Gladue report writers were not replicable in this assignment as the scenarios were fictional. This was disappointing as the students did not have a chance to practise what they learned about interview techniques as part of this project. For example, we had discussed the importance of asking open-ended questions, and clarifying and corroborating information obtained through interviews, all of which are equally relevant to the practice of law as they are to the Gladue report process.

These limitations may be addressed by having law students directly involved in the preparation of real Gladue reports through an externship program like the one that is apparently taking place at the University of Alberta. Unfortunately, in jurisdictions like Saskatchewan and Nunavut where there is no formal process for the preparation of Gladue reports, we have little choice but to use our imaginations.

Resources

Among other resources, students were assigned the following relevant readings during this course:

  • Kelly Hannah-Moffat & Paula Marutto, “Re-contextualizing Pre-Sentence Reports: Risk and Race” (2011) 12:2 Punishment and Society
  • Cindy Blackstock, “First Nations Children Count: Enveloping Quantitative Research in an Indigenous Envelope” (2009) 4(2) First Peoples Child & Family Review 135
  • Rebecca Johnson & Lori Groft, “Learning Indigenous Law: Reflections on Working with Western Inuit Stories” (2017) 2:2 Lakehead Law Journal 117
  • Hadley Friedland & Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2015-2016) 1:1 Lakehead Law Journal 16
  • Linda Tuhiwai Smith, Decolonising Methodologies: Research and Indigenous Peoples (London & New York: Zed Books, 1999) [excerpts]
  • Inuit Tapiriit Kanatami and Nunavut Research Institute, Negotiating Research Relationships with Inuit Communities: A Guide for Researchers, Scot Nickels et al, eds (Ottawa & Iqaluit: Inuit Tapiriit Kanatami and Nunavut Research Institute, 2006)
  • Benjamin Ralston & Christine Goodwin “R v. Drysdale: A Gold Standard for the Implementation of R v. Gladue” (2017) 33:7 Criminal Reports 114
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“Inuktitut word of the week” board in the NLP classroom, maintained by the Nunavut Law Students Society

Wild Mushrooms or Wild Land: Do you have permission to pick wild food on “Crown” land?

How a mundane practice like mushroom picking can disregard or disrespect First Nations rights and title. And how education can help.

Earlier this summer, I stumbled onto a patch of resistance to reconciliation. My fellow settler neighbours did not agree that the “Crown” land behind their homes was the traditional, unceded territory of the Secwepemc Nation. My neighbours assumed that all non-reserve land had to belong to the government and therefore, what was on it, was theirs for the taking. This was despite a solid public school education on the history of how Canada was settled.

One of my takeaways from this interaction is that the education of First Nation issues needs to include discussions about how individual actions can respect First Nations rights and title. My neighbours knew the history of how Canada was settled and yet they assumed that all Crown land was Canada’s. This was despite recent new stories that the Supreme Court of Canada upheld a Specific Claims Tribunal decision that found that the Crown broke a treaty with the Secwepemc Nation and wrongfully took land from them (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4; see https://www.cbc.ca/news/politics/supreme-court-williams-lake-1.4516522). My neighbours and I live in a town that is literally on stolen land, and that big forests around us may be Crown land on paper but in actual fact it is the unceded traditional territory of the Secwepemc.

Not all places in Canada have the convenience of knowing whose land you live on and a Supreme Court case confirming that the land was wrongfully stolen. This information is accessible to everyone in my town and it made a splash in the news when the decision first came out. This information, coupled with the education that I assumed all my neighbours received about the historical injustice of colonialism, resulted in what I assumed was a common understanding that the land around them was belonging to the Secwepemc First Nation.

It was against this backdrop that we rolled into the early summer months, the first summer after the wildfires of 2017. For several months ahead of this summer, my husband Chief Russ Myers of the Yunesit’in band in Tsilhqot’in First Nation, had been working with his nation around setting up a permitting system for picking wild mushrooms in the Tsilhqot’in traditional territory (http://www.tsilhqotin.ca/Portals/0/PDFs/Press%20Releases/2018_05_18_MurshroomPermitPR.pdf).

The Tsilhqot’in knew that there would be many mushroom pickers coming into the area and that the Province of British Columbia would not regulate them. It was up to them to create a system to ensure that the mushrooms were picked in ecologically sustainable areas.

This system had already been announced when my neighbours made their own announcement on Facebook; these women had recently returned from the traditional territory of Secwepemc Nation and had picked basketfuls of wild mushrooms. They were happy to get some healthy, organic, (free) non-GMO food.

Their glee at picking wild foods was shocking to me. I sent them messages, asking if they secured permissions from the Secwepemc Nation. My fellow settler neighbours were either silently cold or hotly angered at these questions. One woman responded to my suggestion by posting her outrage on Facebook. My other neighbours chimed in. The 93 comment thread lay clear that many people believe that it was their right to pick wild mushrooms on “Crown” land.

When I saw this, I was reminded of a few paragraphs that the Chief Justice McLachlin wrote in the Supreme Court decision, Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257. I had been reading this decision earlier in the year, and paragraphs 114-115 always struck me as infuriating. In these paragraphs, Chief Justice McLachlin, speaking for the Court, assumes that all non-reserve and non-treaty land must belong to the Crown because to assume otherwise would leave “no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value.” This assumption overlooks the number of treaties that were made and broken by the Crown, such as in the Williams Lake case. It also overlooks the evidence that we have that many First Nations in Canada were “managing” the forests and lands without Crown approval or knowledge. These Nations did this because they had been doing it for hundreds of years prior to colonial settlement.

It’s a funny thing to see the Chief Justice and a disgruntled white lady on Facebook arrive at the same blind spot. Two people, with radically different knowledges of the law, First Nations and history, both arrive at the same, unsupportive, assumption: if I don’t know this is Native land, then it must be Crown land.

Most of the land that we have today emerged from the historic wrongs that we all learn about in school. In schools, students look at these wrongs and perhaps will look at the current legal and political systems designed to address these wrongs. I think that this leaves students with an idea of what governments or industry need to do, but it doesn’t give the students a sense of what they need to do as individuals to respect the First Nations whose land they live on. How to live ethically if the land that you live on is stolen?

To ask permissions from the First Nation to harvest wild food is a practice that is small but potentially impactful. How one asks for permission to harvest wild foods is a delicate act; it requires taking the time to learn whose land it belongs to, to reach out and contact that First Nation, to listen and really try to hear the response, which might be in a language which is not yours. This process may not be easy, and there probably is not a universal approach. But by even trying to do this, settlers are showing government and industry and all our neighbours whose land and laws we are choosing to follow. An education that connects historic wrongs with how individual actions can help reconcile the past is one way that we can get other settlers to begin this kind of practice.

After I had sent my neighbour the questions, the Secwepemc Nation came out with a map of the areas where mushroom picking was allowed. Other Secwepemc bands have also put up signage instructing mushroom pickers and buyers that they were in the unceded territory of the Secwepemc people. In a move that shows how deeply people recent “Crown” land from belonging to Fist Nations, one of these signs outside of Lac Du Boise Grasslands Park near Kamloops was vandalized with a violent and crude message (https://www.kamloopsmatters.com/local-news/education-is-the-only-answer-to-ignorance-band-chief-responds-to-racist-comments-found-on-vandalized-sign-near-kamloops-973042).

How settlers pick wild mushrooms and other wild food can be a case study on how individuals can take small steps to recognize and reinforce (or deny and erase) First Nations right and title. Teaching the “Big History” or “Big Law” of First Nations rights and title is important, but may not be enough. In these lessons, there is an opportunity to also interrogate what mundane, everyday practices that settlers may be doing that disregards First Nations rights and title. It is in these small acts, as simple as picking a blueberry, or talking to your neighbour, that can help us all carry the responsibilities of reconciliation.

 

Top photo: Wild mushroom, known as a morel, growing on Fox Mountain, on Secwepemc territory, in Williams Lake, Spring 2018. Photo credit: Frances McCoubrey.
Many thanks to Rebecca Johnson and Gillian Calder for their helpful and patient edits and suggestions.