I 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.