Year: 2015

Reconciliation in a different key: contemplations from abroad

Much like others who have posted on Reconciliation Syllabus, I began my teaching career as the TRC call to action was announced. As a new hire in the Department of Child Law at Leiden Law School in the Netherlands, I wasn’t bound by the TRC’s 28th recommendation, but felt, in my own way, morally bound to engage with it. Perhaps this was because, as a 2015 DCL Teaching Fellow at McGill’s Faculty of Law, I had already been thinking about the place of chthonic legal traditions in the context of Legal Traditions, a graduate-level compulsory course for students of the Institute of Comparative Law. And perhaps, this was also due to my research interests in law and religion, constitutionalism and education law, as well as a long-term engagement with cultural competencies and law (by way of Jean-François Gaudreault-DesBiens and Diane Labrèche’s project on cultural competencies for the Quebec Bar).

 

But how do you talk about, and engage with, the TRC and reconciliation from abroad? And more importantly, how do you do so in a meaningful manner?

 

In the context of my appointment, I was expected to teach in the newly minted advanced LL.M. on international children’s rights. We currently have eight students enrolled for the first year of this program, which makes for an unbelievable student-teacher ratio, but also, allows us to go into deeper conversations about various subjects. One of the modules that I have been co-teaching is on children’s socio-economic rights, which includes a class on the right to education. I had also been asked to contribute to a general introductory class on children’s rights, which again, included a course on the right to education. My reflections therefore concern my experience teaching the right to education and the TRC at both graduate and undergraduate levels.

 

I was asked to teach a class on the right to education at the undergraduate level, to a class comprised mostly of exchange students and others interested in an introductory class in children’s rights (about fifty students in all). While the first half of the course focused on the right to education (international provisions, UNCRC general comments, etc.), the second half was dedicated to talking about the right to education as rights subjects. It is in the context of the second half that I chose to engage with the TRC. My aim, in the forty-five minutes I had, was to introduce students to the TRC; I had prescribed a small portion of the TRC report (pages 2-24) to students in advance, as a way to engage with “education” in the context of western dominance of children’s rights scholarship as well as education about one’s rights. None of the students in the class were Canadian; none, it seemed, had heard of the TRC prior to my class. This gave me pause for thought. While I had been living in Canada, the TRC made headlines routinely, but it made me wonder how (or whether) this was translated abroad – or whether, for those in Europe (as I am now), the discussions of vulnerability and marginalization were reserved for the burgeoning refugee crisis. Within the context of the class, I introduced the TRC by way of the “Aims of the TRC” video by Commissioner Marie Wilson. I then wanted to contextualize this by talking about Recommendations 27 & 28 with students. I asked them how, beyond the context of cultural competencies and a compulsory course on indigenous legal orders, could we engage with and think about this within our greater legal studies? As a rejoinder, I also asked how we could better engage with this story in the context of primary and secondary school, as I was teaching a class on the right to education. The answers I received went in different directions: within the context of law, a student from the UK suggested it could be included in a foundations class (for him, foundations was a capstone class at the outset of his legal studies); another student from South Africa proposed that it could be within classes on constitutional law (as she had, for discussions on apartheid). Outside of law, one Dutch student in education studies proposed that this could be addressed in civics classes at the primary and secondary school levels – while another student in political science also made a similar suggestion. While these ideas were interesting, they required much prompting on my part, which made me think perhaps I needed to give students more context about Aboriginals in Canada if I wanted deeper answers.

 

Armed with these insights, I taught the right to education again, a few weeks later, within my advanced master’s class on children’s socio-economic rights. I thought, as I was putting this class together, of the irony of “education” in the context of residential and industrial schools. Two quotes haunted my preparations:

 

When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men. (Sir John A. Macdonald, as cited in TRC Principles, p.6)

 

[…]

 

if you wish to educate these children you must separate them from their parents during the time that they are being educated. If you leave them in the family they may know how to read and write, but they still remain savages, whereas by separating them in the way proposed, they acquire the habits and tastes—it is to be hoped only the good tastes—of civilized people. (Public Works Minister Hector Langevin, as cited in TRC Principles, p. 29)

 

While again, I spent the first half of the class on the international and regional instruments that protect the right to education, the second half of the class was dedicated to thinking about, and discussing, how the right to education can also be a vehicle for understanding our rights as rights subjects. Like the undergraduate class I had taught, I had prescribed a portion of the TRC report (this time, pages 1-55) and had introduced this portion of the class with the TRC video. I took care in explaining afterwards, what where some of the long-term repercussions of the residential school system (including challenges in meeting basic needs, health challenges, education, disproportionate engagement with the justice system). Again, I spoke of Recommendations 27 & 28 of the TRC report to explain my interest in pursuing this subject further within the context of this class. Unlike my undergraduate class, however, I focused on the TRC recommendations that spoke directly to education (Recommendations 6-12). I asked students what they thought of these recommendations in light of the first half of the course, where we had focused in great part on Article 28 of the UN Convention on the Rights of the Child, which protects, amongst other things, against corporal punishment (and links to Recommendation 6, which recommends repealing Article 43 of the Criminal Code), but also, other international instruments that protect a child’s cultural heritage in the face of education and Canada’s difficult relationship with the UN Declaration on the Rights of Indigenous Peoples. Interesting questions came up from students, such as “what the difference is between Aboriginal children being educated on reserve, as opposed to off reserve?” That is not a question that can be addressed in two minutes. It requires – and deserves – deeper attention. Another student asked how (or whether) non-Aboriginal early education would address the questions of cultural competencies, as noted in Recommendation 12? This question also raises important questions of how these issues are tackled in mainstream early education. I also received some very engaged answers from students who come from countries dealing – or have dealt – with historical injustice. A student from Israel said it depends on whether you go to an integrated school or not. If you do, she said, there are discussions about how do you deal with Independence Day, for instance. But she noted that if you are a non-integrated school, there is no real impetus to address the question in a practical sense. A student from South Africa noted that apartheid was addressed in history classes when in primary/secondary school and then through constitutional classes later on. Interestingly, that he said that learning about apartheid in a post-apartheid setting actually had a nation-building effect for him (but a caveat is made about schools in townships not being as integrated and therefore unlikely to engage with this as a positive identity-crafting experience).

 

Introducing the TRC in the context of children’s socio-economic rights revealed the challenges in addressing this multifaceted issue in such a short time frame, without being able to engage more deeply with the socio-historic underpinnings. But at the same time, it enabled me to speak about inequality, justiciability and the educational project –all central to discussions on socio-economic rights – in a different key than other examples. Reconciliation and the reconciliation syllabus project therefore invite us to think (even) more critically about how and why we teach, wherever we are.

Reflecting on the #Reconciliationsyllabus in Evidence law

2015-12-14 17.36.31.jpgI write this post from Tofino, on the unceded territory of the Nuu-Chah-Nulth First Nations.  In truth, I am taking a break from grading my evidence law exam papers, each of which contains a student’s answers to two questions predicated on an Aboriginal title claim.  It feels like a good moment to reflect on the steps I have taken this year and in previous years to integrate attention to reconciliation within my course on evidence.

When I first started teaching evidence law, Christine Boyle warned me that one of the perennial challenges of this course was the difficulty students have in identifying which rule is triggered by a given fact pattern.  About six years ago, I decided to tackle this challenge with a new approach:  I shifted my classroom teaching around to spend as much time as possible on a case-based learning approach.  (Case-based learning is not the same as problem-based learning, but it’s also different from the case method.  Essentially, students are asked to work in small groups on a fact pattern that develops as the term proceeds.  That way, they can become immersed in an unfolding scenario and have a chance to apply the rules they are studying more or less immediately. In my class, the case-based learning is not assessed, but I (tell my students that I) carefully design my final exam to resonate with themes they have encountered in the case-based learning exercises.)

This year, I set students to work on two files: one criminal (based on the Australian case of R v Conway, a police officer charged with conspiracy to murder his ex-wife), and one based on Halalt v District of North Cowichan (ie a file which required students to engage with the distinctive evidentiary context of s. 35 rights).  I updated my materials on the evidentiary dimensions of s. 35 claims to incorporate the SCC decision in Tsilqhot’in (which had been decided since I last taught the course).  I also integrated some of the insights of the TRC Executive Summary, to strengthen the observations made in Delgamuukw about the importance of ensuring that the adverse effects of colonization on Indigenous communities should not act as a bar to success through a facile application of Eurocentric notions of proof and reliability.

This is the first year since teaching the course in this format that I have had a class comprised entirely of students who have completed a compulsory constitutional law module on s. 35 rights and title.  The difference in their understanding of the substantive law and the context of reconciliation was striking – it made my job so much easier.  This seems to me to constitute tangible evidence of the value of making such modules compulsory.

When I first adopted the case-based learning method, my hope  was that working with the evidentiary rules in the context of case files would help students to see the purpose behind the rules, and thereby improve their capacity to identify which rule to use at a given time.  This hope has largely been fulfilled, but the unanticipated benefit that case-based learning has also offered is that it has made classroom discussions about how the politics of knowledge and power can be traced throughout evidence law much richer.

This year, in the session I always run near the start of term on the challenges of building an evidentiary record in a s. 35 claim, we talked a great deal about the impact of residential schools on community memory and the preservation of traditional knowledge.  One of the things that often emerges from this class is that students turn to research to learn what they don’t know about a given Indigenous culture (in this case, the Halalt First Nation).  I find I have to remind many of them – I try to do it gently – that when representing a First Nation, they have the gift of working with those who know the culture best, and who are best placed to educate them.  I talk to them about Pooja Parmar’s wonderful work (http://www.cambridge.org/ca/academic/subjects/law/socio-legal-studies/indigeneity-and-legal-pluralism-india-claims-histories-meanings?format=HB) which conceptualises of lawyers in Indigenous rights claims cases as translators, with an ethical responsibility to try to understand and communicate Indigenous perspectives, not just to fit legal problems into legally cognizable categories.

I picked up on the theme of residential schools in the final exam, with an elder whose traditional education had been interrupted by his removal to residential school and a Province that argued that his knowledge should therefore be given little to no weight. (The character in my fact pattern was based on the evidence and biography of an elder who testified in Coachiching FN v AG Canada, 2014 ONSC 1074.)  My students have dealt sensitively with this fact pattern, including the residential school dimension.

While I feel this term has been a good one in terms of further integrating the #ReconciliationSyllabus into evidence, I have lingering worries.  I worry about asking my Indigenous students to learn about a system of rules that – for all its rhetoric about and (I think often genuine commitment to) avoiding Eurocentric reasoning, ultimately takes its authority from and is beholden to the authority of a colonial Crown.

In my mid-term feedback, many students expressed appreciation for my attention to s. 35 cases but a few asked for something “more practical”.  I try to explain why s. 35 litigation is crucial for practice in BC – real estate, commercial, resource, environmental, administrative, criminal law all engage with s. 35 – but in responding to this resistance, I also try to argue that all Canadian lawyers have an ethical responsibility to understand and do justice to Indigenous perspectives and to recognise the contemporary effects of colonialism (the TRC helps me to do this).  I know that they won’t all leave my course persuaded, but hopefully the first time they encounter these arguments outside law school, they’ll feel more informed.  I’d love to incorporate something deeper about Indigenous law and an example of evidentiary practices within the law of a BC First Nation, but I haven’t found the right example yet.

I haven’t seen my teaching evaluations yet, of course, but I had a thoughtful and generous group of students this term.  Their openness and sensitivity made it possible to explore the #ReconciliationSyllabus more deeply, and I believe that has translated into their work throughout the term.

Reflections from a First-Timer: The TRC and First Year Criminal Law

Lisa Kerr, Assistant Professor, Queen’s University Faculty of Law

The TRC Calls to Action arrived in the year I began my first term of law teaching at Queen’s. Recommendation 28 speaks to the need for law schools to teach the history of Indigenous people and the law, including understanding the history of residential schools and their legacy. As a newly-appointed professor teaching Criminal Law, this recommendation called on me to address the effects of this legacy on Indigenous people in the justice system and in incarceration.

With that call to action, and with Recommendations 30, 31, and 32 specifically imploring our society to eliminate overrepresentation of Indigenous people in custody, improve access to community sanctions as a realistic alternative to imprisonment, develop responses to the underlying causes of offending, and amend the Criminal Code to give trial judges the ability to depart from mandatory minimum sentences and make greater use of conditional sentences, my work in developing a first year Criminal Law class consistent with these goals was cut out for me.

Next semester, when I teach Sentencing and Imprisonment, an upper level course, these topics will be a focal point of the course. But first year course planning presented more of a challenge, as both sentencing and a wider sociological lens often do not find much space in the first year curriculum. The subject matter of first year tends to focus on the “front end” of the criminal justice system. Questions of guilt and innocence are often assessed in isolation from the root causes of crime and the question of the state’s capacity to impose fair, productive and truly proportionate punishment. What’s more, I knew that the task of teaching the black letter law alone could be challenge enough in my first year.

I planned to follow the syllabus of my experienced colleagues Don Stuart and Lisa Dufraimont, who have generously shown me the ropes. Not surprisingly, I discovered their course plans to be demanding, comprehensive, and full of tricky issues and complex doctrine. I knew that such experienced teachers would be able to move through the material elegantly, weaving in concerns about the impact of criminal justice on particular populations and embedding critiques of misguided legislative approaches into black letter lectures. But would I be able to do that? As I contemplated both absorbing and conveying this rich course, I knew I was at far greater risk of getting bogged down. I worried that I might become overly focused on the technical aspects – which students seem prone to doing as well – and ultimately I could fail to linger on the profound questions of fairness and the lens of social justice that can be applied to any criminal law case and that must be developed so as pursue the TRC recommendations. My awesome teaching mentor Darryl Robinson helped me think through these and other teaching challenges each week in the fall term. Happily, I have many years ahead to keep contemplating the question of optimal balance in the first year curriculum between law’s context and its formal rules.

In contemplating a concrete strategy to follow the TRC recommendations relevant to my class, I remembered how Michael Jackson at UBC always taught sentencing first. So I brought Gladue and Ipeelee to the beginning of the course. These are the cases where the Supreme Court of Canada directs trial judges to make meaningful use of s. 718.2(e) of the Criminal Code, setting out a number of guiding principles to ensure that sanctions other than imprisonment should always be considered for offenders, “with particular attention to the circumstances of Aboriginal offenders.” We talked in class about how this is a uniquely Canadian approach. I argued that it is a credit to our legal system that we are willing to acknowledge something about our history of colonialism and racism at the critical moment of responding to a criminal offence. I noted that Americans are always surprised to hear of this approach, invariably replying “but that’s unconstitutional – that’s a race-based distinction.” We talked about the value of Canada’s commitment to substantive equality and our ability to distinguish between ameliorative and harmful legal distinctions.

To introduce and contextualize these cases, my class discussed the incarceration rate for Indigenous adults in Canada, which is about 10 times higher than the incarceration rate of non-Indigenous adults. I put that statistic in comparative context, noting that this is in fact significantly worse than the overrepresentation of black people in the U.S. system (albeit on a far different scale). The comparison is often surprising to Canadian audiences.

We also discussed how legal rules aimed at ameliorating a social problem like systemic discrimination don’t always have intended immediate effects – a good general lesson for first year students. Indeed, the over-representation of Indigenous people in Canada’s correctional system continued to grow in the last decade, despite Gladue. The current levels of growth are most alarming: since 2000-01, the federal Indigenous inmate population has increased by 56.2%, and the overall representation rate in the inmate population has increased from 17.0% in 2000-01 to 23.2% today. Looking at the years since 2005-06, there has been a 43.5% increase in the federal Indigenous inmate population, compared to a 9.6% increase in non-Indigenous inmates. Focusing on Indigenous women, the problem is even worse. They represent 33.6% of all federally sentenced women in Canada but are only 2% of the Canadian population.

Rates of incarceration are not the only important topic. Our class also discussed the substance of incarceration: the experience and quality of punishment matters too. Here, the evidence is clear that Indigenous prisoners often have more difficult prison experiences. Both Indigenous men and women are routinely classified as higher risk, meaning they are overrepresented in segregation and maximum security populations and have less access to early release. We talked about the limits of an ameliorative sentencing rule to address these institutional dynamics. This also gave us a chance to think about the real meaning of a prison sentence. Too often, the discourse of criminal law alludes to the justifications of ‘deterrence’ or ‘retribution’ without linking those concepts up to a particular institutional regime. Without attention to what the criminal justice system actually delivers to offenders – long after a decision about guilt – these justificatory concepts are little more than empty rhetoric.

In sum, frontloading Gladue and Ipeelee allowed us to ask some big questions about the legitimacy of criminal law, not only for Indigenous people but for the entire system. And it strikes me that pursuing reconciliation in these ways in the first year Criminal Law syllabus improves the scope and themes of the course overall.

Update: Indigenous Legal Traditions at Lakehead’s Bora Laskin Faculty of Law

by Karen Drake

As promised, attached is my syllabus for Indigenous Legal Traditions in 2015:

ILT Syllabus 2015

I’m also attaching a sample fact pattern. I give this to students to use as a practice question for their Talking Circle Assignment and for their Final Exam:

sample-practice-question-for-indigenous-legal-traditions

I’m always keen to receive suggestions for improvement. Please don’t hesitate to contact me with any thoughts: kdrake@lakeheadu.ca.

What’s happening at Lakehead’s Faculty of Law?

By Karen Drake*

Our program at Lakehead University’s Bora Laskin Faculty of Law is unique in that we have three mandatory courses dealing with Aboriginal legal issues. With these three courses, I think we at least touch on each aspect of Call to Action #28 from the Truth and Reconciliation Commission, which states:

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.

My goal here is to provide as much detail about our program as is feasible in a blog post. If anyone would like more specific information, please feel free to contact me.

Our program is still a work in progress; each year, we strive to improve. One way we do this is through our Aboriginal Advisory Committee. In September 2013, our Faculty of Law signed a Protocol Agreement with the four Indigenous nations most closely involved with our law school: the Anishinabek Nation (Union of Ontario Indians), Grand Council Treaty #3, Métis Nation of Ontario, and Nishnawbe Aski Nation. Pursuant to this Agreement, we meet regularly with representatives of these four nations to obtain their feedback on our program.

I’m grateful for every opportunity I have to solicit guidance from those willing to provide it. If anyone has suggestions for ways we could improve, I would love to hear from you.

Our three mandatory courses dealing with Aboriginal legal issues are:

  1. Aboriginal Perspectives
  2. Indigenous Legal Traditions
  3. Aboriginal Law

————–

  1. Aboriginal Perspectives

Aboriginal Perspectives is an experiential learning course. It is mandatory for our first year students, and it takes place throughout their first year. It gives students an opportunity to begin to immerse themselves in Indigenous world views. Students receive teachings over the course of a number of weeks from an Anishinabe elder and from a Métis knowledge-holder. They receive guidance on how to engage respectfully with Indigenous communities. Our hope is that these teachings will help to fulfill the recommendation to provide training in intercultural competency. Students also hear from guest speakers, such as Indigenous leaders, members of the Indigenous legal community, and residential school survivors. Finally, students have the opportunity to supplement these in-class sessions by engaging with Indigenous communities, for example by participating in pow wows, medicine walks, sweat lodges, and other ceremonies.

  1. Indigenous Legal Traditions

Indigenous Legal Traditions is a one-semester course that is mandatory for our first year students. It takes place during the first semester of first year and is divided into two sections of 30 students. In it, we focus on the legal traditions of the Anishinabek and Métis nations, given our presence within the traditional territory of the Anishinabe and within the traditional homeland of the Métis.

We begin by discussing Anishinabek stories, including creation stories and Nanabushu or Nanabush stories. We do this over the course of a few classes, in our Restorative Justice Room, which is set up in circle, allowing us to use a talking circle approach. In each of these classes, half of the group (15 students) discusses a handful of stories in a talking circle, while the other 15 students serve as witnesses to the circle. Then we switch roles and discuss another handful of stories. The talking circle draws out normative principles from the stories.

Another distinctive feature of our Restorative Justice Room is the panoramic view facing east, which in the winter (when the leaves are down) includes a view of what non-Aboriginal Canadians know as the Sleeping Giant, but the Anishinabe know as Nanabushu. So as we discuss stories about Nanabushu, he rests right outside our window. Our Restorative Justice Room also contains a table with Anishinabek medicines that are available to our law school community, including students.

In Indigenous Legal Traditions, students also receive teachings from the land. Our law school has been extremely fortunate to have developed a relationship with members of the Fort William First Nation (located beside Thunder Bay), who are working to revitalize a sugar bush located on the side of the mountain within their reserve. They have very generously invited us to the sugar bush, where students experience principles of Anishinabe governance – such as the principles gleaned from our talking circles – in operation.

We then consider the history of Aboriginal-Crown relations from an Anishinabe perspective, or more specifically, from the perspective we developed from the stories and the sugar bush, as supplemented by the teachings the students received in their Aboriginal Perspectives course from an Anishinabe elder. To do this, we first consider Anishinabek perspectives on treaty relationships generally, including treaties with other Indigenous nations such as the dish with one spoon treaty between Anishinabek and Haudenosaunee nations. We then apply this perspective to treaties between the Anishinabe and Britain or Canada, including the Treaty of Niagara of 1764, the Robinson treaties (given our presence in Robinson Superior Treaty territory), and Treaty Nine.

On the topic of Aboriginal-Crown relations, we also consider – again from an Anishinabe perspective – the effects of the imposition of the Indian Act and the residential schools system. We read Chapters 1 and 2 from the Truth and Reconciliation’s Interim Report, They Came for the Children. (Going forward, these chapters will be replaced with excerpts from the Commission’s final report.) In terms of comprehending the impact of residential schools on Indigenous communities and on Indigenous legal systems, I cannot say enough good things about Hadley Friedland’s stories, Sweet Dirt and Beyond Sweet Dirt, which are part of her LLM thesis. Although the entire Indigenous Legal Traditions course is a kind of indirect training in anti-racism, I see this component of the course as the most direct form of anti-racism training. Friedland’s stories illustrate the intergenerational effects of residential schools and show why some Indigenous communities and some Indigenous individuals are still suffering. But these stories also offer a way forward, out of the darkness created by residential schools.

Next, we consider the present-day significance of Anishinabe law by reading Drawing Out Law by John Borrows (Kegedonce). We use different pedagogical techniques to draw out the legal principles from this work. Students break into groups of seven or eight. They analyze some of the Scrolls within Drawing Out Law using an adapted case brief method, as suggested by Val Napoleon and Hadley Friedland. They then consider other Scrolls using a talking circle. Afterwards, we all meet back together to discuss the potential benefits and drawbacks of each approach, as well as the principles the students identified in each Scroll.

With respect to Métis law, despite my citizenship within the Métis Nation of Ontario and my participation in Métis governance, I have not identified as many resources on Métis laws as I have on Anishinabek laws. Some of the sources that I rely on in this course include the excerpt on the buffalo hunt from Alexander Ross’s The Red River Settlement: Its Rise, Progress and Present State, Brenda Macdougall’s One of the Family, and Adam Gaudry’s PhD dissertation. I’ve recently received some excellent suggestions regarding other potential resources, and I would be very grateful for further suggestions.

We cover a handful of other topics in this course as well. This year’s Indigenous Legal Traditions syllabus is still undergoing revisions. I will endeavour to post it here within the next few weeks, once it is finalized.

The modes of evaluation for Indigenous Legal Traditions consist of a mark for participation, a talking circle assignment, and a final exam. For the talking circle assignment, the class is divided in half and each group of 15 students is given a fact scenario about a hypothetical Anishinabe community facing numerous interrelated legal issues. Each group works together to find resolutions to these problems by using a talking circle to apply Anishinabek laws to the fact scenario; this takes place during class time. I see this assignment as a way of providing skills-based training in conflict resolution. Students learn to actually apply the protocols and principles of a talking circle to novel facts, in order to solve the legal conflicts experienced by a hypothetical Anishinabe community.

The final exam is similar, although it is in a written format and completed individually and not in a group. It consists of one or more fact scenarios about a hypothetical Indigenous community (either Anishinabe or Métis), who are faced with various interrelated legal problems. The students must analyze these legal problems using the relevant laws, either Anishinabek or Métis, as the case may be. The value of the talking circle assignment and of this kind of final exam is that they allow students to treat Indigenous laws as law. Instead of talking about some theoretical aspect of Anishinabek or Métis laws in an essay question, students actually apply Anishinabek or Métis laws. This allows students to experience for themselves the value and utility of Indigenous laws.

I’m the first to admit that this course has a lot of room for improvement. Here’s just one example: an important source of Anishinabe law that is neglected in this course is Anishinabemowin, the Anishinabe language. Unfortunately, I do not have an adequate knowledge of Anishinabemowin. One of my goals going forward is to rectify this problem by learning Anishinabemowin. I look forward to your feedback about other ways I can improve this course.

  1. Aboriginal Law

Aboriginal Law is a mandatory, full-year course in 2nd year. Our program has 60 students per year. Thus far, Aboriginal Law has been taught in one section comprising all 60 students. It focuses on Canadian laws applied to Aboriginal peoples. The first semester and part of the second semester are dedicated to section 35(1) jurisprudence on Aboriginal and treaty rights, as well as Crown obligations such as the Crown’s fiduciary duty, the duty to consult and accommodate, and the honour of the Crown. We engage in a critical evaluation of that jurisprudence and its underlying tenets, such as the assumption of Crown sovereignty over Aboriginal peoples and Aboriginal territory, and the role that the doctrine of discovery plays in that assumption. Other topics covered in the second semester include: section 25 of the Charter, federalism issues related to Aboriginal peoples, comprehensive claims and specific claims, Aboriginal identity including registration under the Indian Act, band councils, band membership, membership in Métis communities, band council elections, Indian reserves, the Canadian Human Rights Act as it pertains to Aboriginal peoples, and the United Nations Declaration on the Rights of Indigenous Peoples.

A final note: this academic year, our Faculty will be hiring for two tenure-track positions, one of which is targeted for an Aboriginal scholar, with a projected start date of July 1, 2016. If you’re interested in helping us build on our Aboriginal initiatives, please consider applying. As of the time of writing, our job ad has not yet been posted, but will be soon. You can eventually find it here: https://www.lakeheadu.ca/academics/departments/law/employment

*Karen Drake is an Assistant Professor at the Bora Laskin Faculty of Law at Lakehead University. She can be reached at kdrake@lakeheadu.ca.

Dean Jeremy Webber’s post at slaw.ca on TRC Recommendation #50

Check out this August 4, 2015 post at slaw.ca by UVic Law Dean Jeremy Webber:

http://www.slaw.ca/2015/08/04/the-law-schools-and-the-future-of-indigenous-law-in-canada/

Webber argues that in addition to measures taken by law schools to respond to the TRC Call to Action on the curriculum for lawyers and law students, legal educator should pay attention to the TRC Call to Action #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.

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

How are law schools in Canada taking up this challenge?

Truth & Reconciliation Commission — Calls to Action (…it begins with coloured pens…)

After year of work, the Truth and Reconciliation Commission of Canada released its executive summary of its work.  The summary, which every Canadian should read, is 388 pages.  It is quite a document, and people will need to take time to read it.   The TRC also released a much shorter document listing its 94 recommendations — or as they name them, Calls to Action.

The past two weeks, this has been truly my favourite document.  It is also a dense document.  There is SO MUCH in here, that it is easy to get overwhelmed by the text.  In an attempt to read it in a way that works with my own brain, I started reading with coloured pens and pencils, highlighting and circling.

TRC p1-2

Here is what the first two pages of my annotations currently look like.  For a PDF copy of my ‘in-progress’ annotated copy, click here:  call to action – rj annotations

I highly recommend the method.  It is a good way to get some clarity on who is being asked to do what. 

I think there are lots of different ways and colours, but for me, one option was to start with the VERBS.  What i tried to do was separate out the different kinds of verb/actions that were involved.  ie.

  • FUNDING VERBS (tg allocate money or resources or funds to something)
  • LEGISLATING VERBS (make new legislation; repeal or amend; appoint people)
  • MONITORING VERBS (to investigate something to see what is going on)
  • REPORTING VERBS (to give feedback or follow through on actions)
  • PROGRAM DEVELOPMENT VERBS (to develop programs, to train, to educate)
  • SYMBOLIC/RECOGNITION VERBS (apologies, admissions, acknowledgements, statements)

I also started thinking about the WHO, to see what kinds of people were being spoken to in the different recommendations (ie. ‘government’ and “Aboriginal” are terms that are inclusive but may be too big for some purposes.  The recommendations are often quite a bit more specific)

  • Canada
  • The Prime Minister
  • Federal Government
  • Provincial/Territorial Government
  • Municipal Government
  • Aboriginal Government
  • Aboriginal Organizations
  • Aboriginal Peoples
  • Aboriginal Spiritual Leaders

And then, when you get going, you start to see that there are LOTS of groups and people in here: Parties to the Settlement Agreement; Law Societies and Law Schools; Medical and Nursing Schools, health care workers; religious congregations; faith groups; Journalists, Coaches; archivists, interfaith social justice groups.

Further more, if you go through with a yellow highlighter, you can see all the times that the Calls to Action ask people to work together in collaboration.  And there is often specificity regarding WHICH groups should be working together collaboratively on which kinds of activities.  Some of these things need people to work together, and some of them make space for people working alone.

My own advice?  Pick up some crayons and start reading….

(if you want to read a short piece that my friend Gillian Calder and I wrote for Canadian Lawyer magazine on recommendations #27 (the Federation of Law Societies)  and #28 (to Law Schools) click here)

Diversity in our idea of Family: What is family law?

Teaching family law has its perils — on every issue there is someone in the class who has faced the questions addressed.  This makes teaching some of the questions even harder, particularly questions related to child welfare and child protection, to directly addressing issues of race, Indigeneity and cultural understandings of the best interests of the child.

But I would argue, it is inappropriate to teach an introductory course in family law without paying due attention to the issues of colonialism, particularly in British Columbia.  The legacy of residential schools and the sixties scoop have had profound impacts on Indigenous families, from non-recognition of diverse family forms, to direct intervention to a failure to acknowledge that parenting is a socially and culturally generated practice that can be destroyed.

I have been teaching family law at UVic Law since 2004 using materials that have been generated and edited over many years between family law professors at UVic and UBC.  Primarily the work of Professor Susan B. Boyd (recently retired).  Editing our materials year to year has given us the ability to include diverse media, links to resources like RCAP, and have themselves been a source of conversation.

The course has been taught with colonialism being one of the central themes, particularly in the family formation part of the course, and introduction to the legacy of residential schools is part of the first set of readings.  We have used excerpts from RCAP and the texts of the apologies in the House of Commons, but will work to edit our materials to be inclusive of the TRC Report and Recommendations.

In this short blog post I just want to mention two resources that I have used.  The first is a video that I show when teaching a class on Indigenous child protection.  It is a VHS cassette (an historical artefact for today’s students) produced by the Carrier Sekani Family Services: A Journey Home: Reclaiming our Children, Carrier Sekani Family Services (CSFS), House of Talent Productions, 2005  www.csfs.org  If your library doesn’t have it you can probably get it ILL from UVic Law.  The video tells the story of a bah’lats (a potluck) held by the Carrier Sekani to welcome back into the clans children who had been apprehended and raised outside their communities.

The other readings for the class are Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations” (1992), 30 Osgoode Hall L.J. 375; and annie bunting,“Complicating Culture in Child Placement Decisions” (2004) 16 Canadian Journal of Women and the Law 137.  This enables an open and challenging conversation around the ideologies embedded in our understanding of terminology like “best interests of the child,” questions of essentialism, questions of protocol, and a more embodied response to the questions mostly due to the visual presentation and the powerful words of the elders (with English subtitles).

I have written about using that resource in class here: Gillian Calder, “‘Finally I Know Where I am Going to be From’: Culture, Context and Time in a Look Back at Racine v. Woods” in Kim Brooks, ed., Justice Bertha Wilson: One Woman’s Difference (Vancouver: UBC Press, 2009) pp. 173-189.

The second resource is a short story by Thomas King, “The Baby in the Airmail Box” in A Short History of Indians in Canada (Toronto: Harper Collins, 2005) 34-49 at 34-42.  The story is about an Indigenous couple who goes to a Child Placement Office in Alberta to adopt a white baby, while simultaneously a white baby has mysteriously shown up in a box delivered to the local Chief and Counsel.  It is wry and laugh-out-loud funny.  But every year I sit on the edge of the desk and for the last 8 minutes of class I read this short story to an almost silent, holding in their breath class.  At the end of the reading, when there is inevitably laughter, I set up the next class.  In that class the students are required to read a series of difficult adoption cases, including Racine v. Woods.  Thomas King is purposefully playing with stereotypes, and it makes some of the students uncomfortable.  But the goal is to go to the readings thinking carefully and critically about what is not said in those cases.  What kinds of stereotypes and assumptions are at play.  And the following class is inevitably more engaged as a result.

I am very happy to share lecture notes, syllabi from family law, or other materials (gcalder@uvic.ca).  And I am happy to know what family law teachers across the country are doing to respond to the TRC.

“The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

gillianIn the 2014-2015 academic year I revised the methodology of my first-year Constitutional Law class to centre “problem-based learning.” And the problem that I chose to ground the year, federalism, Indigenous laws, and the Charter, was the “problem of prostitution.”

If anyone is interested in thinking through what a shift to problem-based learning might look like, I have lots of resources from my year that I am super happy to share. Just email me at gcalder@uvic.ca. It is the best thing I have done to challenge my own perceptions and teaching in a long time. Here are a couple of articles about problem-based learning that I found helpful when I started my own rethinking:

  • Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298
  • Shirley Lung, “The Problem Method: No Simple Solution” (2009) 45(4) Williamette Law Review 723-766.

However, what I want to say briefly here in the context of how law schools should respond to the TRC, is that one of the problems I have faced in teaching Constitutional Law is the volume of materials, but also the silos. I have tended to teach the course in three separate chunks, and evaluate those three chunks separately as well. What I found this year using a thick, messy, political, economic, social, ethical and multi-legal problem like “prostitution” was that the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

And in particular, the issue of who is affected by the sex-trade and the correlation between colonialism, murdered and missing Indigenous women and girls, and law’s engagement with prostitution, was something we returned to throughout our learning process. And while there are Indigenous issues in federalism and in the Charter, here the engagement and the learning was deep-learning. And, as a result, discussion in class and work, collaborative projects and work on evaluations engaged with questions of colonialism in a way that I have never experienced teaching Constitutional Law before.

The resources that I drew upon in teaching the Indigenous component of the course included:

I also had Guest lectures by  Val Napoleon, John Borrows.  The students also listened to this phenomenal podcast, by UVic law grad (and singer-songwriter) Tara Williamson (please use with acknowledgement to Tara and to UVic Law): https://www.dropbox.com/s/81jgawpfl7h5zx1/Podcast%2014%20intro%20to%20s7.m4a?dl=0

I also tried to challenge the pedagogy used in each class, with an aim to use movement, the visual, art, and the diversity of learning styles of my students, to connect their learning and their emotions.

The questions that students were asked to answer as part of their evaluation included:

 Question one: Amongst other goals, this section of the course has asked you to think about the relationship between Indigenous Laws and the Canadian Constitutional order. To explore this relationship you are asked to choose one source (for example, an article, a book, or a film) that is external to our course materials and to offer a critical review of that source. Your analysis should draw on at least three of the sources our course has addressed with the goal of examining the tensions that exist between Indigenous and non-Indigenous legal orders. Do we truly live in a multi-juridical country? What happens when one set of legal orders can’t hear the other? How does your source contribute to a shifting understanding of law?

An example of an external source might be: Louise Erdrich’s novel The Round House (New York: Harper Collins, 2012); Christy Jordan-Fenton and Margaret Pokiak-Fenton’s children’s book Fatty Legs: A True Story (Toronto: Annick Press, 2010) or the Inuit film, Atanarjuat (The Fast Runner), Zacharias Kunuk, 2001.

Question two: Amongst other goals, this section of the course has offered you the opportunity to critically engage with s. 35 of the Constitution Act, 1982, primarily through the cases that have interpreted that provision. In the SCC’s recent Tsilhqot’in Nation v British Columbia, 2014 SCC 44 decision, the Court held as follows:

[42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

With attention to at least three sources that we have studied this term, how is the Court’s concern with a “culturally sensitive approach” reflected in Canadian law? Is the Court moving the jurisprudence in a new direction? What underlies this critical aspect of the judgment? What obstacles or concerns do you foresee with this approach?

 Question three: Amongst other goals, this section of the course has asked you to think about the role that colonialism plays in the “problem of prostitution.” Indeed, an argument of our course is that that the passion and creativity of the Idle No More movement has brought legal issues to light that might have otherwise lain dormant. With attention to at least three sources that we have studied together this term, what does looking at “the problem of prostitution” through the lens of the Idle No More movement bring to the surface? What systemic issues inherent in our study of the sex trade this term are elucidated through a colonialist or postcolonialist lens? How have the stories of Indigenous women been reflected, or not, in our journey through Constitutional law to date?

But significantly, issues of Indigeneity, colonialism, and being a residential-school survivor, were issues that were part of the student’s final evaluation, a factum that was to either challenge or defend Bill C-36. Teaching law in an integrated way, centring problem-solving as the primary skill, can lead to unexpected results.

I have never seen this kind of quality work from students in a first year class before, it was exhilarating and humbling to be part of – and I think there is lots to learn for how we approach the challenge the TRC recommendations set for law schools.

Idea for First Year Criminal Law?: Teach a class on R v. Kikkik (1958)

118136408_640If you are looking for a unit to add into your Criminal Law class, I would recommend taking up the 1958 case R v. Kikkik.

This was the high profile trial of an Inuk woman who was charged with murder (for killing her brother-in-law, who had killed her husband), and with child abandonment (for leaving two of her children behind when she tried to walk the 45 miles to nearest trading post).  These events took place in the winter of 1958, after the Ahiarmiut had been ‘relocated’ from their traditional lands at Ennadai Lake to Henik Lake (to a place hundreds of miles away, where there were no caribou, and where many Ahiarmiut starved to death).

I don’t think the case shows up in any of the mainstream criminal law texts, but was one of the big show trials of its time (covered by TimeLife).  As a result, there is lots of material to drawn on for teaching!  Part of what it makes it a great case to teach, especially in first year, is that there is a documentary film you can use!  In what might be the only example I can call to mind, the documentary is made by Kikkik’s daughter, Educator Elisapee Karetak (who was a baby at the time). [Elisapee was also a cultural advisor to the first Akitsiraq Law Degree Program]

I use this film/case in the very first few weeks of the class.  I don’t have them do any mandatory readings, i just arrange for them to see the film.  I have tried both having a lab session (in which they watch together), and simply letting them watch it on their own time.  There are different advantages to each approach.  The film is accessible on Vimeo (“Kikkik” https://vimeo.com/18742945.

After they have seen the film, we spend class time talking about “the facts” (as seen by the criminal justice system), both the successes and limits of that system, and then work outwards in layers to explore what other harms are present, what is not visible within the Canadian justice system, and the after-effects into the future.

Though it is early in the term, the case is memorable and carries its weight, so that we can return to it throughout the year (much in the way that some scholars use the Marshall inquiry).  My experience is that the first few week are not “too early.”

What you get is:

  • a really compelling narrative (which makes it accessible for students)
  • a rich text (which means  you can work with it on many levels, which means it works both for students with more and with less prior education/knowledge/experience with the intersection of crim and colonization)
  • both historical distance (which makes the case somewhat easier to process), and an active layering into the present (which makes visible connections between past and present)

I have been using the film/case in my criminal law class (for the past 10 years) and have found the case to be both powerful and pedagogically awesome.  (I should also say that i have taught it in different ways in different years, and have learned new things from it each time…. i think this is a great case for people wanting to start to take small steps in shifting their materials, and it would work no matter what case book you were using)

Pedagogy Notes:

  • it is a fantastic way of including the history of arctic relocations, and of the “e-number system”
  • it is a case that the judicial system “got right” (people can feel good about the possibility that the judicial system can get it right… but can also see why ‘getting it right’ is not enough)
  • It makes visible the ways that the larger systemic harms suffered by the Ahiarmiut were completely invisible to the Canadian judicial system (that is, criminal law doesn’t easily make visible the harm of relocation itself). This weaves itself back into the materials throughout the year
  • it raises questions of gender, necessity, self-defence, mothers-and-babies-in-jail, child apprehensions, right to counsel, confessions, translation, juries, judges charges to juries, media coverage of judicial system, etc etc.  [especially if you use the transcript].  There are many ways you can easily refer back to the case throughout the year in ways that support better knowledge about the history of Aboriginal/Crown relations.
  • Because this case was a HUGE show trial in the 50s (made the world stage), there are lots of materials you could draw on: The trial transcript, media coverage, sculptures, films. This means that the case/film works well with a variety of different learning styles

OTHER COMMENTS ON RESOURCES:

  • UVic has a copy of the trial transcript (for the murder trial) in our law library. In an upper year legal theory course, the students read the whole transcript.  I don’t do that in first year crim, but there are some parts of it that are really excellent for teaching with! I made a PDF copy for the students, divided into two PDFs
  • If you like to use images in class, here is a link to the powerpoint I sometimes use.  Feel free to modify, extend, alter, make it your own, etc.
  • If someone wanted to read more about it, I wrote an article that looks at the 4 genres in which the story could be told (i don’t assign it, but it can be helpful background for someone wanting to familiarize themselves with the story, or pull things out of bibliography…or if you want to talk about genres of justice, and challenge the assumption that justice finds its purest expression in the genre of criminal law cases) 
  • there are two versions of the film.  The shorter vimeo one (link above), and a longer one that has an additional 30 minutes of footage taken after the elders had returned to the home from which they had been moved.  I really love the longer version, but it is only online in the inuktitut version (as far as I can tell).  Students find it easier to access the shorter version.  If you have time to do a larger screening, the longer one has additional material that is very powerful.

OK.   other suggestions welcomed!