Academic Freedom Implications of Responding to the TRC

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The new term is upon us and at UNB, like every other law school across the country, we are thinking about the TRC calls to action and how to best respond. The other day, we were lucky enough to have Charlene Bearhead visit UNB’s Faculty of Education, which included a public event on indigenizing the university. An important part of the discussion was about the role of mandatory courses and mandatory curriculum. We all agreed that having one mandatory course would be insufficient in law or any program, but there was some discussion about whether having mandatory courses on Indigenous law and governance, Aboriginal law (I am using that term as a shorthand for settler law applied specifically to Indigenous people(s)) and so forth was a good idea.

The discussion took me back to a conversation I had with Karen Drake from Lakehead earlier in the year after a brilliant talk she gave at UNB on the need for mandatory courses and curriculum. At the time, she argued that faculty should be directed to include mandatory curriculum into their courses. I thought that would be easier to do for courses where the course description included those elements, but felt that directing faculty to include mandatory curriculum where this had not been the product of a collegial process was offensive to academic freedom principles. Karen was of the view that academic freedom attached to the ‘how’ but not the ‘what’ of curricular development. Talking about it more, I came to understand that my reliance on the collegial process was informed by my context of strong academic freedom protections under the UNB collective agreement and a very long history of collegial governance, while Karen’s views were informed by an institutionally younger context. Anyhow, we were both talking about the need to think through the academic freedom piece and she thought I should write something and I agreed and then summer happened and here we are.

The question we were wrestling with is this: when we commit ourselves to responding to the TRC calls to action, particularly to 28, how will we respond to professors who choose not to include aspects of a curriculum we would like to make mandatory for all students. Would it be permissible for a dean to discipline a faculty member who fails to include Aboriginal title in their first year property course? Or pushes it to the end of the syllabus, where it will predictably not get taught? I continue to think that coercion has no place in TRC implementation, and Karen and I were quite agreed that it would be disappointing and less than ideal if it came to that. Where we disagreed was whether it was possible.

My thinking about academic freedom has been profoundly influenced by Jon Thompson, a  mathematics professor emeritus at UNB, former chair the CAUT’s academic freedom committee, inaugural lecturer of our faculty association’s Jon Thompson annual academic freedom lecture, investigator of the York conference controversy (No Debate: The Israel Lobby and Free Speech at Canadian Universities. Halifax: Lorimer, 2011) and coauthor of the report on Dr. Olivieri with Jocelyn Downie and Patricia Baird (The Olivieri Report: The Complete Text of the Report of the Independent Inquiry Commissioned by the Canadian Association of University Teachers. Toronto: Lorimer, 2001). He pointed me to the recent statement of academic freedom articulated by the AUCC (now Universities Canada) and the more elaborate CAUT statement, which makes express mention of freedom of teaching as follows: “Academic freedom includes the right, without restriction by prescribed doctrine, to freedom to teach and discuss.” In a personal conversation, Jon also noted that the history of academic freedom shows that it tends to be progressives who are disciplined, not late adopters.

On its face, the CAUT statement does not answer the question whether academic freedom covers only the ‘how’ and not the ‘what’ of teaching, and the AUCC statement is even less instructive. So I turned to the arbitral jurisprudence. It turns out that there are not many decisions that address academic freedom in the context of teaching. But I did find a couple that might be helpful. One is a recent Quebec decision involving Concordia University where the collective agreement specifically protected the rights of instructors to pick their own teaching materials. Despite this, the grievance was denied in the context of a multi-section course because academic freedom of teaching was found to be constrained by a general ‘reasonableness’ requirement. Also, the institutional purpose of delivering the multi-section course in a consistent manner was found to be compelling, particularly when the requirement to use particular materials was the subject of express language in the job ad. It is noteworthy, however, that the decision affected the right to recall of a part-time instructor for a particular course, rather than a discipline grievance by a tenured or tenure-track professor.

The second potentially relevant case is from Memorial. Here, a professor’s right to determine the final mark for a student in her course was in issue. In that case, the arbitration board found that the university had violated the professor’s academic freedom, but not because her freedom to mark student work was unlimited, but rather because academic freedom has a procedural rights component that meant she had a right to be included in the discussion. This is not on point in terms of teaching materials, but the notion that academic freedom principles could be respected through process is helpful.

In an ideal world, the general enthusiasm for and commitment to implementing the calls to action would be sufficient for pervasive and comprehensive curricular reform. My sense from speaking with colleagues across the country is that faculty everywhere are working on this with dedication, creativity and love. Maybe it is because I have been working in faculty labour relations for too long, but I would nevertheless be surprised if the issue of mandatory curriculum inside of existing courses will not give rise to tensions somewhere along the way. In particular, what is true for many of our students is also true for many of us: we simply know too little and do not have confidence in our ability to teach a reconciliation curriculum. I am therefore incredibly grateful for all the contributions to the blog project, it is the kind of capacity-building that is desperately needed. Maybe we don’t have to answer the academic freedom question, but I hope that if we do, we will find ways to make progress as colleagues.

Jula Hughes is an associate professor at the Faculty of Law at the University of New Brunswick and a former president of AUNBT, the UNB faculty association.

 

 

Learning and listening

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Several years ago, I made a mistake.  In return, I received an invaluable gift.

Teaching jurisprudence for the first time, I assigned Margaret Davies’ wonderful book Asking the Law Question.  That was not the mistake! In fact, I love that text and teaching from it was a joy.  Davies combines a deep knowledge of legal theory with a narrative voice that brings the salience and joy of ‘doing theory’ to life.  The book includes considerable attention to Indigenous legal theory by scholars who live and work in the country we know as Australia, the country where I grew up and received my first legal education.  I was glad to have that content (and context) to share with my students at UBC, because I felt it would offer them some sense of how Indigenous scholars elsewhere have grappled with and made sense of colonialism, neo-liberal governance, and violence.

My mistake was to overlook the importance of offering students an Indigenous take on these issues that came from their place and their context.  When I taught Australian Indigenous theory to my students, and talked to them about The Ranger Uranium Mine and Jabiluka and about The Aboriginal Tent Embassy, I hoped to open conversations about the similarities and differences between settler colonialism and Indigenous resistance as it played out in Australia and in Canada.  However, many of my students – at a time before UBC had implemented its Aboriginal constitutional law module – lacked the context and the history of Canadian colonialism that would have made these comparisons meaningful.

More importantly, for my Indigenous students, studying Indigenous legal theory and examples that originated in Australia was deeply frustrating: they had looked to this course as an opportunity to read and discuss some of the brilliant work by Indigenous scholars who belong to Indigenous communities in Canada and work in this space.  They also wanted to read work by non-Indigenous scholars who have written thoughtfully and knowledgeably about Indigenous people and the Canadian legal system.

The gift I received was that three of my Indigenous students decided to discuss their concerns with me.  They explained why they felt frustrated by the reading and discussion we’d had under the umbrella of “Indigenous legal theory”.  They asked me to reconsider for the following year.

I will always be grateful to those students for having the courage to speak to me.  It is not an easy thing to challenge one’s professor.  Even less so when the thing you are challenging them about is something that is fundamentally important to you.

In preparation for the coming year, I have been reading Sheila Cote-Meek, Colonized Classrooms: Racism, Trauma and Resistance in Post-Secondary Education.  This book, and a recent article in This (The Canoe and the Ship) have reminded me that post-secondary education is too often an exclusionary experience for Indigenous students.  My reading makes me value my students’ willingness to engage in dialogue with me even more.

I can only hope that in my response to them, I acknowledged their courage and the gift they were giving me by reaching out to me.

After their visit, I pulled books from my shelves and articles from my database.  Anyone who has taught will understand the care with which we select the one or two pieces we ask students to read, and the dismay with which we set eight or ten pieces aside for every one we set.  After much mulling, I decided to defer the planned syllabus for two classes and to ask students to read two pieces:

John Borrows, Creating an Indigenous Legal Community

Sherene Razack, Gendered Racial Violence and Spatialized Justice

The conversations we had about these two pieces were some of the best we had all term.  We all learned a great deal that week – perhaps me most of all.

Reconciliation is a hopeful word.  A word that promises a way of doing things that will bring people together with shared respect and a sense that we all have much to learn.  It is a word that challenges those of us with relative power – professors and teachers – to adjust our way of doing and being educators.

As we begin a new academic year, and seek to enrich and deepen the #Reconciliationsyllabus, my reconciliation includes being open to hearing from those who have the courage to make things better, and being open to changing course in response to what I am learning.

The Skirt Project: connecting gender, religion, and colonialism

My name is Natalia, and I am a third year law student at the University of Victoria. I grew up on the territory of the Qayqayt First Nation, in New Westminster, British Columbia, and have since lived on Otomí, Totonac, Nahua and WSANEC lands. I’ve spent the last four months as a summer research assistant to Professor Rebecca Johnson, who has given me fascinating research tasks as well as significant freedom to explore related topics.skirt poster

The research project started with a question about skirts. Why are women in some indigenous communities required to wear long skirts to participate in spiritual ceremonies? This question about a practice known as the “skirt protocol” quickly blossomed into a series of interconnected queries about the relationship of clothing to culture, religion, tradition, gender, colonialism, and identity. The complexity of these topics led me to simplify my job description when asked about it, and as a result most of my friends and family have been extremely jealous of my summer job “googling skirts”.

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And I did engage in a significant amount of exploratory googling, bookmarking hundreds of newspaper articles, blog posts, and Twitter exchanges with the word “skirt” in the title. I also just talked to people. In casual discussions with family and friends about my research, I was really struck by how many individuals have had something to say about it. Almost every single woman I spoke with (and a few men, too) immediately wanted to share a personal anecdote about a moment in which they confronted rules about what they could or could not wear. For many people, these stories brought up strong feelings of anger, indignation, and resentment, even when they had occurred years earlier.

stripe skirtThis was particularly true of my aunt, who recalled being made to kneel on the ground as a seventh-grader while her school principal measured the distance from her hemline to the floor. She describes being made to feel ashamed and embarrassed. hijabHer mother, my 81-year-old grandma, remembers the incident as well. She marched to the school to support my aunt knowing that the skirt did, in fact, violate the dress code, because my aunt had outgrown it and she couldn’t afford to buy a new one – and because the vice principal’s own daughter had worn the exact same skirt and had not been punished. For my aunt, the primary injustice of the situation was related to gender; the dress code was unfair because it imposed much stricter rules on girls than on boys. For my grandmother, the injustice was class-based: the dress code was unfair because it was hard for lower-income families to ensure their children complied with it, and because it was unevenly enforced based on social rank. Both my aunt and my grandmother were right, and their experiences only go to show that rules about clothing are not neutral, arbitrary, or trivial, but in fact affect people in diverse and disproportionate ways.

But what does this slight from nearly five decades ago have to do with reconciliation?

churchRules about how we dress are sometimes obvious and sometimes not, but either way, they are so ubiquitous that nearly everyone can recognize the symbolic power of clothing and identify with the experience of being told what or what not to wear. This means that clothing provides a really useful “way in” to more complex debates about cultural identity, spirituality, tradition, and gender in indigenous and non-indigenous communities. Serious tensions over how women should dress occur across diverse populations, but they are further complicated for indigenous peoples by the legacy of colonialism and the ongoing struggle to decolonize. Questions about whether the skirt protocol is really an indigenous tradition quickly give way to questions about how colonialism affects traditional practices, who has the power to decide which traditions are valuable, and how people are differently impacted by traditionalism depending on their gender. Learning about the rationales for the skirt protocol quickly spawns more questions about the relationship between spiritual belief and indigenous identity. Exploring indigenous identity leads to important questions about cultural authenticity. web

This month, British Columbia will implement a new K-12 curriculum which mandates inclusion of indigenous content, perspectives, and pedagogies, and the National Inquiry into Missing and Murdered Indigenous Women will officially begin. The new curriculum responds to the Truth and Reconciliation Commission’s 94 Calls to Action by attempting to address the education system’s failure to acknowledge the grievous harm done by colonialism, and the system’s own role in committing and perpetuating that harm. The Inquiry will attempt to understand and address the enormous problem of violence against indigenous women. I think that reconciliation is best served when we make visible the connections between these two projects.

Over the summer, I developed a series of resources which I hope will be useful for learning and teaching about these connections and for facilitating conversations about how clothing is connected to gender, colonialism, religion, culture, and identity, using the skirt protocol as a point of entry. The resources are varied in scope and content. They include a short video as well as a Prezi presentation, and a paper entitled Clothing the Collective which explores these topics in greater detail. There are a series of workshop ideas and lesson plans: see the Talking Skirts Lesson Plan and Backgrounder and the Creating Conversations Activities. There is an annotated list of existing teaching resources, which I’ve categorized by grade level and format: see Teaching Resources. All of the materials have also been consolidated into a single document, available here: The Skirt Project Consolidated Materials. I hope that these materials can be of use in responding to Calls 27 and 28 and 60 to 63 of the TRC’s Calls to Action.

This project received support from the Religion and Diversity Project and the Indigenous Law Research Unit. For further information, please feel free to contact myself at nsudeyko@gmail.com, or Professor Rebecca Johnson, at rjohnson@uvic.ca.

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“You’re Not the Indian I Had in Mind”: Jess Housty On Respectfully Working in Indigenous Communities

I started my day with my morning tea and these illuminating words from Jess Housty. From her Twitter profile (@heiltsukvoice), Jess Housty describes herself as: ‘Cúagilákv: Community agitator; mother; tribal councillor; admirer of gentle warriors; foreign-funded radical; Indigenist; unapologetically . Though I haven’t met her myself, I have had the opportunity to hear her speak about her work on the campaign to end trophy hunting in Heiltsuk territory. She speaks eloquently and passionately about the importance of collaboration, perseverance, and staying grounded. Check out her other writings here.

Now back to the article. This article is a MUST READ for all Canadians. I really mean that. Though she is writing to a specific audience (film-makers who want to film in Indigenous communities), her words carry with them a much broader significance. Housty leaves this final message:

Reconciliation isn’t about federal apologies or one-time marches in the street. It’s about re-evaluating how you carry yourself in the world in relation to Indigenous peoples. There’s a great deal of learning (and unlearning) to do and I hope you intuit how important and transformative the journey can be.

In the article, she describes the many problematic ways in which films are made in Indigenous communities and provides practical alternatives to people who are interested in working with Indigenous communities. Housty asks all the good questions that people tend to shy away from. Her article addresses the following 8 questions:

  1. Are you centring Indigenous voices and perspectives?
  2. Do you expect Indigenous people to stage their culture for you?
  3. Have you done your homework?
  4. Are you clear on ownership and intellectual property?
  5. Have you thought critically about compensation and benefits?
  6. Are you building capacity or just extracting resources?
  7. How do you feel about leaving final approvals or ownership of footage with us?
  8. Are you playing up stereotypes or open to authenticity?

These reflections and suggestions for improvement are certainly relevant in the law school environment where professors are tasked with implementing the TRC Calls to Action and promoting reconciliation. There are endless ways that this article could prove useful to professors in Canadian law schools. For example, professors could assign Housty’s article as reading and then ask each student to analyze a media piece (film, article, news clip) on a legal issue in Indigenous communities with Housty’s words in mind. It is also directly relevant to any professor or student who intends to do legal research with Indigenous communities.

These words keep coming back to me, as I wander through my day. I reflect on the work I have done as a lawyer working with Indigenous communities. Have I done a good enough job centring Indigenous voices and perspectives? Have I been building capacity? Compensating properly? And on and on. I welcome the opportunity to reflect on my work through a new, sharper lens and am thankful that Jess Housty shared her words with the world. So go ahead and read the full article here.

Small Steps on the Path Towards Reconciliation at the University of Ottawa Faculty of Law

WLMC.jpg_Page_1_Image_0002Sarah Morales and Angela Cameron

The University Of Ottawa Faculty Of Law has been collectively working towards understanding and implementing the Recommendations of the Truth and Reconciliation Report, released on Dec, 15, 2015. We have had long discussions and debates in large groups and small, in formal settings such as faculty retreats, and over intimate meals with smaller groups. We have not always agreed on how to move forward, and have tossed around various models, ideas and plans. Lead by our Indigenous faculty; Tracey Lindberg,  Larry Chartrand, Sarah Morales and Darren O’Toole, we have learned to live with the fact that our approach may not be perfect as we start out, but that we are committed to refining our plan or even changing paths as we learn more.

In anticipation of the release of the final report we invited Indigenous scholars to participate in the Dean’s Distinguished Lecture Series and focus their remarks on Indigenous law and legal traditions.  Dr. Ray Austin gave a lecture on November 10th, 2016 focusing on the movement to develop tribal courts and tribal law as effective means of modern self-government.  His remarks specifically addressed the complicated task of using traditional Navajo values to address contemporary legal issues.  Prof. John Borrows also gave an inspiring talk on Nov. 17th, 2015. His remarks focused on Indigenous methodologies in teaching and he spoke about his approaches which incorporate being on the land, and learning Indigenous laws in the places that they are forged.

On February 17, 2016 we held a talking circle, let by Elder Claudette Commanda of the Algonquin Nation. The circle included interested Indigenous and non-Indigenous students, professors and staff members. This circle helped us to shape the terms of reference for a key step: hiring an Indigenous Affairs Co-ordinator. The Co-ordinator is intended to provide cultural and academic support for our Indigenous students, and assist and lead faculty in our reconciliation project. We are excited to welcome Katherine Koostachin of Attawapiskat First Nation to the faculty on July 27th, 2016 as our Indigenous Affairs Co-ordinator.

Following the circle we continued to discuss the challenges we faced on the road to de-colonisation. It became clear that many individual professors were already consciously teaching in a de-colonising frame, or were including Indigenous laws and legal orders in their course materials. Following the release of the Final Report and recommendations in December, 2015 we began to develop the outlines of an approach to reconciliation at a faculty level. We have set up a small group of first year professors, covering all courses, who are committed to incorporating either a de-colonising lens or Indigenous laws and legal orders in a clear and unambiguous way into their courses. This includes our mandatory legal research and writing and dispute resolution courses. A small cohort of self- selected first year students will follow this reconciliation curriculum. *We have hired research assistants to support professors in developing or deepening course materials, and have organised a reading and discussion group of these self-selected professors to learn together. This group of professors also participated, on June 6th, 2016, in a workshop on Indigenous legal methodology with Hadley Freidland of the Indigenous Law Research Unit at the University of Victoria Faculty of Law. We were joined by Prof. Jeff Hewitt (Cree Nation) of the University Of Windsor Faculty of Law who participated as an invited expert.

This first year ‘pilot project’ will provide us with a starting point to evaluate our approach, and consider introducing some or all aspects to a larger part of the student population.

We continue, of course, to offer a large number of excellent upper year courses taught by Indigenous faculty that treat Indigenous laws and legal orders, Aboriginal law, and reconciliation as their core subject matter.

At a broader faculty level we invited Prof. Rebecca Johnson to our faculty retreat in April, 2016. Rebecca brought a methodology to the larger faculty audience that makes the TRC recommendations easy to access and teach, and provided us with a number of excellent pedagogical entry points. The workshop was hailed ‘the best retreat ever’. In particular faculty loved the way Rebecca’s methodology opened the TRC recommendations to private and public law scrutiny, and built on professors’ existing subject matter knowledge. It also demonstrated that there is so much to teach and learn about within the TRC that does not require us to magically and suddenly develop a deep knowledge of Indigenous laws and legal orders- which can at times be a very intimidating proposal for non-Indigenous faculty.

Finally, our first year orientation will also feature a reconciliation theme. Prof. John Borrows will address the entire first year class, and all first years will participate in two important workshops: 1) an introduction to law that places Indigenous laws and legal orders on the same footing as common and civil law and 2) an overview of the Truth and Reconciliation Commission.

*This relatively small cohort will also take some classes within larger groups. In these larger groups, as a result, more students will be exposed to the reconciliation curriculum by default.

 

Reflections on the Role of Stories in Law

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Pipsell (Jacko Lake), the site of “Trout Children” and the Ajax mine proposal (Photo: Bonnie Leonard)

 

TRC Call to Action 50 states:

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

This Call to Action urges us to properly value the potential of Indigenous law institutes and the need to take Indigenous laws seriously as laws. In this blog post, I reflect on my experience “developing, using, and understanding” Secwepemc laws through work with the Indigenous Law Research Unit (ILRU) and the Shuswap Nation Tribal Council (SNTC).

I focus on the power of stories in Secwepemc law. My hope is these words will reveal the importance of funding Indigenous law institutes by demonstrating that researching Indigenous law is possible. 

I also hope to encourage people to find a story from the territory you live on and engage with the laws within it using your whole self.

Because stories are so central to this work, I will begin with a story…Read Blog Here!