Art as Intervention in a Time of Reconciliation [by Tasha Henry]

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[Ed. note]  The following post is a report by educator Tasha Henry, discussing a recent partnership between the Art Gallery of Victoria, and students in three schools.   The work here, which was done with Grade 3 and 4 students, is a very interesting model of the kind of work one might consider when thinking about Art as intervention in the TRC Calls to Action (and indeed, art as intervention within a law school context).   We thought folks would find it thought-provoking (and a bit inspiring!) Here, then, is  the post by Tasha [and she has permission from the students and families to use the photos appearing in this post]

 

Taking a place at the table:

Art as Intervention in a Time of Reconciliation

By Tasha Henry

In collaboration with several artists of a recent exhibit at the Greater Victoria Art Gallery, entitled “It’s in the Making”, Selkirk Montessori students, were initiated into the world of art installation with contemporary artists who challenge the notion of art as product. The students met with Nicholas Galanin, Tlingit/Aleut artist and Cedric, Nate and Jim Bomford while they constructed their installations in the gallery. The grade 3-4 students interviewed the artists with questions such as:

  • “Why is art installation important?
  • When do you know when your art is finished?
  • How is art an intervention?”

The students then attempted their own installation work in the gallery mansion as a response to their ongoing work with Canada’s Truth and Reconciliation Commission, “Calls to Action”.

IMG_5782Art installation as social intervention felt like the appropriate vehicle to explore the children’s emerging awareness and questions around the devastating history of Residential Schooling in Canada. As teachers, we are in the unique position to respond to the TRC’s Calls to Action in ways that model sensitive and historically respectful approaches to Canada’s shameful investment in Residential Schooling. Rather than approach this work as a prescriptive curriculum, we approached the concept of reconciliation as a process of responding to the ongoing impacts of colonialism on Indigenous communities. It was important to us that the children’s work around redress be responsive, multi-voiced and open ended.

To prepare for the day of the installation, for months, the children studied and learned from the Lkwungen First Peoples’ history and the traditional territories on which our school stands, known today as the Esquimalt and Songees Nations. The children were honoured to receive teachings by such highly esteemed and beloved artists and elders such as Richard Hunt (Kwakwaka’wakw), Butch Dick (Songhees), Monique Gray Smith (Lakota/Cree), and Ron George, Heredity Chief Tsaskiy (Wet’suwet’en).

They studied the cultural traditions of the Coast Salish First Peoples by attempting artistic forms such as beading, sewing button “blankets” on felt, and by constructing their own cardboard “cedar bentwood boxes”. They expanded their learning to conceptual art by analyzing the work of two contemporary Tlingit artists, Nicholas Galanin and Blake Lepine. The students were also introduced to the history of Residential Schooling through Nicola Campbell and Kim La Fave’s acclaimed children’s books, Shi-Shi-etko and Shin-chi’s Canoe.

IMG_5635 2The students were then given a white ceramic plate (bought from The Salvation Army) where they created their own free hand drawings using only red and black Sharpie markers. On the day of the installation, the students brought their ceramic white plates with their drawings carefully illustrated through a mix of personal designs and traditionally influenced images.

IMG_5636With the guidance of elder and artist, Butch Dick, the children were taught the importance of ceremony and the symbolism of laying a table in the Songhees tradition. They were asked to place their plates in the dining room area in a spot that meant something to them in relation to their understanding of the history of Residential Schooling in Canada.

With reverent gestures and words, the students spoke to their installation choices. They had been particularly struck by the descriptions of malnourishment from the testimonies of Residential School Survivors. Many of the children hid their plates under the large oak table, or under the chairs to represent the starvation of Indigenous children while at school. As the installation took its living form, the children chose to turn the chairs on their side, and to cluster their plates in the corners of the room to represent the upheaval of home and culture due to mandated schooling for Indigenous children.

IMG_5678Shion: “We put our plate above the fireplace so that people could remember the children that didn’t get to have these plates in Residential School. The fireplace is a symbol of First Nations hope”

James: “I put my plate away from everyone else’s because people were trying to destroy their culture and keep it away from them. Our plate represents the culture that was taken away from the kids.”

Maciah: “We put our plate on a shelf on a smaller table because maybe not all kids got to sit at the table and maybe had to sit on the floor. It was meaningful because we are bringing back the memory of First Nations kids who were forced to go to Residential Schools.”

IMG_5749 2By inserting their voices through the act of installation the students experienced a powerful social intervention. They were called to speak to their intentions to disturb the establishment of the Greater Victoria Art Gallery, on their own terms, in their own words. As Layla, a grade 3 student said, “When I made the drawing I felt I was learning about the culture and also doing something kind for the children by drawing their designs”. The children realized quickly that their art work was not for them; it was not a product to take home or display on the wall. As Adison said, “I like that some people learned that not everything is for yourself you have to make things for others, as well and learn about other cultures”.

In the collective experience of installing their art work as a social intervention, witnessed by their teachers and Butch Dick, who himself is a Survivor of Residential Schooling, the children experienced the importance of standing up for those who have been silenced. Jamie, a new student from Japan, reflected on the experience with poignant simplicity, “the kids couldn’t see their parents for a long time. So, we honour them.”.

After the children installed their work and spoke to their choices, we circled the installation and read this quote out loud:

IMG_5780 2“We are thankful for these and all the good things of life. We recognize that they are part of our common heritage and come to us through the efforts of our brothers and sisters the world over. What we desire for ourselves, we wish for all. To this end, may we take our place in the world’s work and the world’s struggle.” (J.S. Woodsworth)

When teaching a response to the Calls to Action, we can only hope that we are able to model what social justice learning looks like within the various institutions that frame social thought. This is not work that can rely on detached lessons within the confines of a classroom. The work of reconciliation must be work with the First Peoples of the land from which we learn, through meaningful, conscious and open ended forms that refrain from a settler agenda, or desired outcome. By precisely not desiring an outcome or a finished product, the children’s temporary installation became a visual testament to the missing and unaccounted for children due to Residential Schooling. On that day, it wasn’t our words that filled the space, it was the sound of children moving with intention, fuelled by a quiet collective heat burning within each of them, to seek retribution for children they had never met. Their innate desire for reparation permeated the space, and moved them to set a place at the table for the Indigenous children who were not permitted their rightful place in Canadian society.

Photo credits:  Tasha Henry

[Ed. Note:] A truncated version of this discussion can be found on the Victoria Art Gallery’s website (http://emagazine.aggv.ca/partner-school-inquiry/)

 

 

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Tips for Organizing Reconciliation Events

Tasha Henry (who wrote the post on “Art as Intervention“) sent an additional note pointing to a toolkit resource they had found especially helpful for teachers and professionals trying to organize reconciliation events.  She noted the following tips:

  • Ensure that the location is culturally safe and accessible to everyone invited.
  • Ensure proper acknowledgement of the territory at the start of the event.
  • Where possible, invite an Elder to open the event with a blessing and invite them to give you direction and advice to ensure proper protocol is being followed. Be sure to find out how best to honour their time and contribution.
  • Where possible, explore ways to incorporate Indigenous cultural practices into the event in a respectful manner, such as singing and drumming by Indigenous community members. Make sure to honour this contribution.
  • Approach guests/speakers as early as possible, and ensure that all aspects of the event including honorariums are clearly communicated in writing.
  • Arrange for food and drinks. Sharing food is an essential part of the event.
  • Where possible, invite participants across sectors and cultures (e.g. multicultural organizations, Indigenous organizations, faith based organizations, the justice system, restorative justice groups, Ministry of Children and Family Development, First Nations Court workers, social service workers, counsellors, health care professional, women’s organizations, child and family services etc.)
  • This discussion may be triggering to some participants, so make sure that supports and opportunities for debriefing are available on-site.
  • Consider funding costs to cover transportation for guest speakers if required.

(Reference: Eguchi, L., Riley, J., Nelson, N., Adonri, Q., & Trotter, S. (2016). Towards a New Relationship: Tool Kit for Reconciliation/Decolonization of Social Work Practice at the Individual, Workplace, and Community Level. Vancouver, BC: British Columbia Association of Social Workers. Retrieved from: http://www.bcasw.org/wp-content/uploads/2011/06/Reconciliation-Toolkit-Final_May-11.pdf

 

#StandForTruth, or,What is the place of Indigenous Laws in Truth and Reconciliation? (a bit of a rant)

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The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick

In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada.  So… I thought I might as well get my stresses and anxieties articulated.

As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).

At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records.  Now there is significant contestation: should the records be kept by Archives Canada?  By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed?  Should individual former students have a say in the matter?

The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR.  At the end of that period, all remaining documents are to be destroyed.  The SCC will hear the case on May 25, 2017.

The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition).  The Coalition is described thus:

We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors.  The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents. 
 
The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents.  The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.

I personally support the Coalition for Truth.

What has been tricky for me is trying to describe what this support means.  So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this.  This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).

In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case.  Canadian law sees this as a story of privacy and confidentiality.  It that the story that best describes the situation here?   A story about the need to honour individual choice?  A story about the protection of individual interests in privacy and confidentiality?

Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools).  And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury.   Should the records related to residential school survivors be kept or destroyed?  What are the relationships of the individual to the collective?  To the past?  To the future?  The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.

To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples.  Will this case be similar?

That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’.  It matters that there is space for Indigenous Laws to be enacted here.  Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.

I think that is why the intergenerational point the Coalition is making is so important.  It is a question of Law.  During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective.   We already know that those stories we gathered and collected in ‘non-optimal’ ways.  That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc).  They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).

And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.

As the case is set out, the solution is one which is flawed in so many ways.  I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed.  I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered.  The choice — Keep or Destroy — is a false and cruel one.  (i.e., would you prefer I cut off your right arm or your left arm?)  Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.

And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’.  But the history of residential schools IS my business.  It is all our our business.  And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).

There is no easy solution here.  But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated.   It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)

It matters not just WHAT the Court does here.  It matters also HOW the Court does it.

Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.

How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws?  How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?

How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future.  Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?

What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously.  It invites us to understand that we (indigenous and settler people) are both a part of this story.  It invites us to take seriously how we think about shared memory, and a shared past.  It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings.  Preserving Truth invites us to change the story we are telling about this case.

It invites us to imagine that it may be possible to simply stop for a moment.  What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making?  What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation?  What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)

Of course, it is hard to talk about this without getting personal (or being personal?)  Easy to blame the system.  I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present).  What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?

OK.  Rant over for now.   My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.

Back to marking….

 

 

Keeping or Destroying IAP Records?: A Case to Watch

The Supreme Court is going to hear the Fontaine case in May 2017.  It deals with the destruction of records and testimony gathered during the Independent Assessment Process of the TRC.

The Coalition for the Preservation of Truth [organized by artist Carey Newman] was just granted Intervener Status in the case.

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Carey Newman with The Witness Blanket

 

ILRU (the Indigenous Law Research Unit) is one of the supporters of the Coalition.  We have been thinking, in particular, about the resources in multiple Indigenous Legal Orders across Canada to respond to questions raised by the case about privacy, truth, harm, and the significance of records such as these.

If you have ideas or thoughts, you can get in touch with the organizers through their facebook page.  There is little in the way of turn around time, as the case is to be argued in Ottawa on May 25.  But, for those of us teaching in law, its significance will continue past that date.  The case is going to be very helpful as a teaching resource.

Attached is a copy of the Notice of Motion to a Judge or the Registrar and Affidavit #1 of Carey Newman in support of the application.   Here is the Exhibit A to Carey Newman Affidavit in support of the Affidavit if you want to see the documents supporting the arguments about intergenerational effects.

I am also attaching a link to the gofundme site.  I am always reluctant to share such links in case it makes people feel there is a pressure on them to contribute. So… please do not feel that pressure (or rather, feel free to pass the link along to others who might be happy to feel such pressure!  hahaha).

That being said, for pedagogical reasons, it is worth LOOKING at the video that Carey Newman made for the site.  It is short:  1:45.   Still, in it you can see how Carey [whom you may know as the artist of The Witness Blanket], with his artist eye, sets up the centre of the intervention in visual/auditory form.

That is, look at the video thinking about the mixture of image, text, voice, music, and movement as its own form of  legal argument

https://www.gofundme.com/standfortruth

Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

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Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

  • Treaties
  • Aboriginal rights
  • Indigenous law
  • Aboriginal-Crown Relations

If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act.  I first heard about the case in a newspaper report, and was completely taken with it!

This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law).  Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.

ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

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Map of BC First Nations

Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht [1] (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk.  They were in favour of conservation, and the conviction of poachers.

As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.

Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.

The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.

A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.

Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.

Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge:  given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.

The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.

In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:

  1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
  2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
  3. Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.

[1] The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.

ADDITIONAL RESOURCES:

  • one could supplement this case through reference to two ILRU reports:  Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
  • There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.

THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT

  • This case is great for teaching “Sentencing”.   It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair.  It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less.  Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done.  The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
  • This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws.  To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals.  In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child).  This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death.  This indicates the importance of Indigenous laws pertaining to human/animal relations.  Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
  • This case is great for exploring Conflict Resolution in the context of International Law.   On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law.  However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht).  What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations.  The eventual solution is one that accords with the needs of all three legal orders.  From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.

 

 

 

WHAT’S ‘YOUR’ TREATY?

WHAT’S ‘YOUR’ TREATY? – A Call#28 In-class Exercise (with thanks to Michael Asch and Alan Hanna)

In the Truth and Reconciliation Commission’s 94 Calls to Action, Canadians are told of the importance of Treaties, both about teaching them, and knowing them. Many of us in Law Schools are focused on Call #28.

28.  We Call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on 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.

On-Being-Here-to-Stay-Treaties-and-Aboriginal-Rights-in-CanadaThis is fine in the abstract, but, as with many things, the devil is in the details. My experience is that relatively few law students already know what treaty governs them. Indeed, many law professors are in the same situation.

Certainly, I found myself squarely in the camp of the non-knowledgeable earlier this year while sitting in on Val Napoleon’s Indigenous Legal Theory Class. Alan Hanna (a lawyer with Woodward and Company, a law firm that works exclusively for First Nations organizations and governments) came to give a guest lecture. He began by suggesting a round of introductions. He asked us to each tell him our name, and what treaty territory we were born in. As Alan told us, this is a question that anthropologist Michael Asch has been asking his students for years.

ACK!

Because I work at a University that attempts to acknowledge the territory as part of its protocols, I knew that I was living on unceded Lekwungen, WSÁNEĆ and Coast Salish Territory. But that was not the question posed. I did NOT know which treaty applied in the place where I was born (Calgary). My first impulse was to blame my mother for that appalling gap in my knowledge base (I mean, why take responsibility when you can displace it?!). However, I was also pretty sure that I recalled my mom talking to me about treaties when she was taking University courses in her 60s. I just had not remembered or retained that information. I wasn’t sure which was worse: knowing that I did not know the answer, or seeing so clearly that I was not alone. Several of us in the class experienced challenges in providing an answer.

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Map from https://canadianhistoryworkshop.wordpress.com/treaties/treaty-six/

Alan/Michael’s question was super-useful in terms of making visible that there are concrete things individual people can do to begin the process of reconciliation. Thus. Note to self: one step in the direction of reconciliation is to “know the name of the treaty that applies in the territory in which you were BORN, as well as in the territory in which you currently LIVE.” And so, inspired (aka ‘tail firmly between my legs’), I scuttled off to the internet, to find and then read about Treaty 7 (for you Calgarians out there!)

 

A second step in the direction of reconciliation might be “figure out how to work TREATIES into one of the classes you teach this year, no matter what subject you teach”.    What follows, then, is a walk-through of an excercise using “The Treaty Question” in a classroom of 40ish students. This is how Alan and I (who went on to co-teach a course on Indigenous Research Methods and Practice this summer) set it up, in order to get at the benefits of the question with a smaller risk of embarrassment to people who don’t know the answer.

THE EXERCISE

On the first day of class, we ended things with the following assignment. We asked the students to take a few minutes in the evening, and go online to find out what treaty governed the place they were from. In setting up the exercise, I told them how I had been asked this question in a workshop and had been unable to answer it (argh… it is TRUE!!! And it was somewhat humiliating). My thought was that it was better to acknowledge to the students that many of us are in the same rickety boat, so that people could throw themselves into a new exercise without fear or embarrassment about a knowledge gap. This is the thing about growing up in a colonial context. There are many knowledge gaps.

We left the students with some freedom on the ‘from’ part of the question. It could mean where they were born, or where they grew up, or where they were currently living. They were told they would report back to the group the following day, and would be required to tell us three things:

  1. What treaty applies in the place you are from (born in, grew up in, living in now)?
  2. What is something you found interesting or unexpected while doing the research for this assignment?
  3. What is your favourite dessert?

THE RATIONALE

Because this was the beginning of the term, not all of the students knew the others. So at one level, this assignment functioned a bit like an ‘icebreaker’. But is also functioned in a number of other ways:

  1. Substantively, this is a great way to get conversation going about Treaties. For many students, it is likely to be the first time they have been asked the question, have been able to provide an answer to the question, or looked at the text of a treaty. Because the students will likely be from a number of different places, it also means that you will have real variety. For example, in our class, we had a student visiting from Europe, who said that there was no treaty governing her. That was a great answer, as it enabled a good discussion about (for example) The Treaty of Westphalia. If that happens, it opens up space for talking about how Treaties in North America are or are not like other kinds of treaties. (Also, depending on the class you were teaching, it could enable a discussion of failures to keep the terms of a treaty, ie. Can one person get out of it unilaterally? Does a breach of a term necessarily invalidate the treaty itself?).
  1. It enabled the students to go do a bit of research on their own right at the beginning of the class (rather than just being given a map of treaties, or being told what treaty governed), in order to answer a question that was “theirs” (ie. It would differ depending on where they were from). Since they were left to do it on their own, it enabled them to develop their own search strategy, and to see something of what is out there in the world (for both the good and the bad). It also meant that they would have a chance to see, talk about and compare some of the different resources out there.
  1. The students were asked to share what they had learned with their classmates. The point of this was not simply that they acquire knowledge, but that they share it. Each student had a few minutes to ‘teach’ their classmates something substantive (which treaties apply where) and also to practice their own talking/oral/aural skills (in a very low-stakes context). This disrupted the conventional model of the professor as teacher, since the students were active participants in knowledge transmission.   It is also ‘collaborative’ in some important ways (collaborating as a class to come up with our own mapping of treaties), and this too supports the skill-development set out in Call #28.
  1. This approach provided space to develop community in a way that a typical icebreaker wouldn’t. The students tended to share in a different way: they were sharing their research process, along with something of what was surprising or unexpected to them. It meant that we spent a very interesting hour, listening to people give gently personalized accounts about search strategies and their responses to learning about the treaty that was ‘theirs’. We were still telling each other something of where we were ‘from’, but in a way different from the way we usually do it: we were each asked to describe ourselves as governed by a particular treaty. It made space for the students to begin the work of making community with each other. While any form of introduction might work for this, doing it in this way disrupted the more common pattern of replying on disciplinary background or degrees or urban/rural (which can be alienating for some students).

SOME TEACHING/PEDAGOGICAL COMMENTS

  • USING A CIRCLE: When we did this exercise in class, we used the ‘circle methodology’: that is, we broke up the classroom space, rearranging things so that we were sitting in a circle facing each other. There were two of us facilitating the class, so the circle began with one of us and closed with the other [a great technique for circles if you are fortunate enough to have two people facilitating/teaching the class]. Some thoughts on using a circle. If you can do it from time to time, awesome. Clearly, this is more or less of a challenge (and indeed, more or less possible) depending on the structure of the room in which you teach. There are some great advantages to using the circle method for some exercises. Most powerfully, it really lets people speak to each other. In some ways, this is because you can’t really take notes or work with laptops: there is no place to hide! Indeed, you get the advantage of a laptop-free space without having to fight for it. There is something powerful where people are talking to each other and can see each other at the same time. While I think the exercise can work in whatever space you have, it is worth thinking about disruptions to conventional classroom space for this exercise. There is something about the change in space that can also support a change in how the students both share and hear information that is being discussed.   It gives people a chance to really practice their listening skills, and leans more in the direction of the skills list set out in the TRC Call #28.
  • MULTIPLE ITERATIONS: I think this is an exercise that could be done multiple times, and in multiple classroom contexts.   Even if the class participant (student or prof) ‘knew’ the answer already, it would leave space for people to re-read, learn something new, share something new, reinforce what they already knew, make new connections.   Depending on the class you are teaching, students can be asked to engage with the treaties in more or less complex ways (for example, in  Family Law, International Law, Conflicts of Law). There is something to be said, however, for beginning where you are: to taking seriously the notion that knowledge can be acquired in layers, and that people can return to the same question multiple times. There is value in doing so in ways that enable people to connect the TRC questions to their own person experience. This lets people do learning in ways that connect them to their own experience of place. It can enable people to connect to land, while opening space for conversations about the obligations one has within a treaty, and about how one learns about treaty obligations moving into a new space.
  • saltyCaramelsSlipping
    My favourite dessert?  Chocolates hand-dipped by a sibling, of course!

    “DESSERT”: We were not just being flippant in asking the students to share their favourite dessert after telling us what they had learned about the treaty that governs the place they are from. We were asking students to do an exercise that can be uncomfortable/challenging for a number of communities for a number of reasons. It may be challenging for indigenous students who may be thinking about broken promises, connections to land, etc. It may also involve some discomfort for some settler students who are similarly asked to consider what it means to be living in unceded land, etc. By heading to a dessert at the end, students were also given space to bond over treats (you can expect to see people nodding in agreement, or occasionally salivating). The moment of lightness at the end helps with the other moments that are more difficult. It also adds another line of connections, is a reminder of food, and other things that people have in common.

FINAL REFLECTIONS

While we were using this exercise in the context of Indigenous Legal Methodology, I don’t think the utility of this exercise is limited to classes the directly engage questions of Indigenous Law, Land or Pedagogy. This exercise is a pretty good one for basic ‘getting to know you’ purposes in the context of any class (or indeed, any non-class context involving introductions). At least within the law school, we are constantly asking students to tell us where they are from, what degree they have, etc. Often, those demands are just to help us get to know each other. Starting from the point of view of ‘treaty’ is one way to do the same thing, while participating in acts of reconciliation by attempting to place treaty as the ground on which we all stand.

But there is much more to be said about this exercise.  Indeed, to introduce oneself by situating the legal order from which one comes is also a performance of law in many Indigenous legal orders. For example, this was articulated as a legal obligation in current work being done by ILRU in conjunction with the Secwepemc (Shuswap Nation Tribal Council) on Land and Resource Law. Beginning with an acknowledgment of the the territory you are in, and of the territory you come from is a way of acknowledging the existence of obligations and responsibilities attaching to both land and people who have taken on relationships to it and to each other.

In the act of introducing oneself to others through Treaty, then, one can make visible the legal obligations that one carries as a result both of territory of birth, and territory in which one finds oneself (and this is true even where one is not conscious of the obligations that they carry). Knowing the treaties makes it possible to acknowledge that one is a guest in another territory. In a perfect world, it also makes visible to non-indigenous Canadians the notion that they too (or, in my own case, I TOO) have treaty obligations. The big work is how we, as Settler Canadians, actualize or engage with those obligations, as we begin to re-consider the questions of what it means to be on treaty lands (and particularly what it means in contexts where treaty obligations have not been fulfilled).

OTHER RESOURCES TO DRAW ON:5564

  1. The TRC Final Report (Volume 1: Executive Summary) pp. 237 to 254. That section addresses:
    • UNDRIP as framework for reconciliation
      • Calls #43 and #44
    • The Doctrine of Discovery & Treaties
      • Calls #45 and #46
    • It also includes info re this link on treaties and Manitoba. Nice resource! http://www.trcm.ca/treaties/
  1. Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (University of Toronto Press, 2014).  For a helpful review of the book by Neil Vallance, see this link:
  2. Aimée Craft, Breathing Life into the Stone Fort Treaty: An Anishnabe Understanding of Treaty One (Purich Publishing, 2013).  For a short CBC report on the book, click here.

Teaching the 94 Calls to Action in the Classroom

TRC2016
Elder Butch Dick, offering words of welcome (photo credit: Carol Liao)

 

This year, as part of the Legal Process course at UVic, we took two days in January, (cancelled all other first year law classes) and brought the students back into their Legal Process groups to spend some concentrated time on the Truth & Reconciliation Commission’s “94 Calls to Action.”

What follows is first a description of what we did over the two days, and then some comments on how these materials could be adapted for use more generally.

THE TWO DAY PROGRAM – DESCRIBED

  • On the first morning (a 3 hour block), we had a panel of 6 speakers. The goal was, in an embodied way, to introduce our students to the history and context for the establishment of the TRC, including the history and legacy of Residential Schools.  Here is the agenda for the day Agenda for Jan 20 – Day 1 panel  (sorry…it will come up on its side, so you may have to rotate it to read it).  In brief, we had:
    • a Welcome to the territories by Songhees Elder Butch Dick, Artist and Educator
    • Tla-o-qui-aht Elder Barney Williams Jr, member of the TRC Indian Residential School Survivor Committee
    • Karla Point, Hesquiaht First Nation and UVic Cultural Support Coordinator
    • UVic (law) Prof Rebecca Johnson, giving an overview of the legal history leading to the TRC and the 94 Calls to Action [See below for more on this]
    • Ry Moran, Director of the National Centre for Truth and Reconciliation
    • Aimee Craft, Director of Research, National Centre for Truth and Reconciliation
    • UVic (visual anthropology) Prof Andrea Walsh, speaking about the process of repatriating children’s art from a provincial residential school
    • UVic Chancellor Shelagh Rogers, Honorary Witness to the Truth and Reconciliation Commission.
  • On the second morning (another 3 hour block), following a short debrief of the day before, the students worked in small groups on a set of exercises aimed at introducing them working collaboratively and individually with the 94 Calls, with the goal being, in part, developing fluency with the content (that is, just knowing what is IN the document).  Here is a copy of the exercise handout.TRC 2016 assignment handout.  Here is a copy of the instructor notes that were distributed to the teachers facilitating the small group work.  Instructor notes for TRC session-jan19

COMMENTS ON SETTING UP A MANDATORY TWO DAY PROGRAM:

Because these two days were part of a mandatory course, attendance was expected for the two days (for students who were unable to make one session or there other, there was an alternative exercise).  While this was mandatory, we did not want to create more work for either faculty or students:  we wanted a space to do some work, but not in a way that would be overwhelming.  Indeed, the focus was in large measure not on the entire history of residential schools, but on the 94 Calls to Action.

  • We did NOT ask them to read anything in advance, nor did we give them any additional readings about the TRC or its history. We presume that there will be much to do on this front over the course of the students’ education.  At THIS point, we wanted to work exclusively with the 12 page document that is the TRC Calls to Action.
  • To set the context, there was some coordination with first year profs early in the year/term, so that all the students had already had a few lectures relating to issues emerging in the TRC Calls to Action [including a lecture in Criminal law on the Kikkik case, and Inuit relocations; a lecture in Constitutional law on the history of Govt/Indigenous relations leading up to the establishment of residential schools]
  • The first day panel was an intense experience, in a good way.  We had struggled in advance over the question of whether or not to ask someone to come speak with us about their residential school experience. On the one hand was the worry that Indigenous folks are all too often asked to share in contexts that are very exacting (that is, I was not wanting to do more damage).  On the other hand, people pointed out the real importance of having space made for those voices, and of letting others make the decisions.  Certainly, Barney and Karla’s participation was a crucial part of the experience.  As many students noted afterwards, it is one thing to have read about things.  It is a very different experience to be physically present with someone who speaks to their experience.  This was a super helpful piece of situating WHY the TRC Calls to Action matter so profoundly.
  • Part of the goal for the second day small group work was to enable them to meet up again with the groups with whom they had spent the first two weeks of law school.  It was also designed to be more practical and hands on — to look concretely at the text of the 94 calls, and to have a chance to work with them collaboratively with others.
  • In addition to ‘attendance’/participation in the group work, the “assignment” was two small pieces of reflective (non-graded) writing:  at the end of each of the two days, students were to submit a post to a blog (set up so that no one but the teacher would see their comments).  They could put down anything they wanted in terms of responses/comments/thoughts/questions.  The piece would show up as complete/incomplete based on simply the submission of text, and there were no marks for brilliance, nor content. The point was to create a space for reflective thinking, focus on the process of thinking, not on the substance of the thought.

COMMENTS ON ADAPTING THE EXERCISES TO A SMALLER CLASS CONTEXT

These materials were later adapted for use in the context of an upper year Criminal Law seminar course, using two class sessions.

  1. The first class session was in the nature of a lecture/powerpoint, setting up the legal context that resulted in the TRC Calls to Action.  Attached is the powerpoint, which people should feel free to use/modify/adapt, etc. [TRC powerpoint-for sharing]  I have a longer draft narrative text which walks a person through the powerpoint.  I also have an audio file from the talk for Legal Process.  If you want a copy of either, email me at rjohnson@uvic.ca.  I am happy to pass them along.  The point is to introduce students to the largest class-action in Canadian history (the Indian Residential School Settlement Agreement – IRSSA), and to have them see the structure of the settlement agreement.  This helps to make visible who is and who is not covered by the IRSSA.
  2. For ‘homework’ after the first session, hand out copies of the TRC 94 Calls to Action (the document is only 12 pages long), and ask them to read it through, and highlight “The federal government” every time they see it mentioned.  While the feds are not the only actors, they ARE a party to the Settlement Agreement (IRSSA).  Thus, the highlighting helps to make visible the sections that speak to their particular obligations.  Highlighting the document also helps the students see more clearly how many other parties are present in the document.  The other reason to have them highlight is to help with the reading (having a task helps ground the reading, so that eyes don’t just slide over the text and out of focus).
  3. The second class session involves working with the same assignment we used for Legal Process.  Here it is. TRC 2016 assignment handout.  And here are the instructor notes  Instructor notes for TRC session-jan19.  But, in brief:
    • The first exercise focuses on Recommendations 1-42.  The goal in each case is not to have students ‘debate’ the recommendations, or consider IF they should be adopted (that would be OK too, but would be a different exercise than the one we used here), but is rather to spend the time trying to ask [in a very descriptive way] what a working group might do, if they were working for a government who was committed to acting on the Calls to Action.  The goal is to imagine a space that is actively affirmative and committed to reconciliation.
    • It  helps to divide students into 5 different groups (Justice, Education, Health, Language and Culture, Child Welfare), so each group is only focusing on a handful of recommendations.  It also helps for them to have flip chart paper to work on [part of the goal is to also provide a chance for collaborative work and discussion], with plenty of coloured pens.  Remind them as they map out strategies to also be including the section numbers.  The goal is less for them to SOLVE problems, than to be able to describe the sections, and identify the kinds of verbs and parties involved.  For the exercise, we asked them to imagine themselves as the federal government.  But many recommendations are aimed at other parties, or are collaborative.  So the goal was also for them to think about the mechanisms they would need to put in place to build relations with the other parties they are to be collaborating with.  It was helpful (when touching base with the groups as they work) to keep reminding them to think about questions like “division of powers”, and “cooperative federalism”, and also about resources OTHER than money.  If they work on flip charts, you can hang them up, so that they can move around to see what the other groups have come up with, which can help in identifying themes.
    • The second exercise (10 different possible questions to work on) was designed to focus on Recommendations 43-94.  These questions again presume people in the community, and don’t require the student to imagine themselves as a lawyer.  They can be providing information more generally based on their knowledge.  The goal is to help an interested person locate sections that may be of interest, and to think about creative solutions.  Here, try to focus them in on finding recommendations that might be drawn up even where they don’t require action (that is, consider that there are recommendations that might serve as inspiration for people wanting to take steps, rather than seeing them only as obligations to  be met or avoided).  This approach makes it easier for them to read the sections with a sense of who is invited in, and the kinds of actions of reconciliation that might be imagined.

The above was one way of introducing the 94 Calls to Action into an upper year crim law class.  Given the breadth of the calls, it is hopefully clear that one might just as easily do this in the context of many other law school classes.  Indeed, it is also possible to do this with high school or general community groups, adapting the materials both to the time available, and the particular interests of the group.