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

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  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?