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

Supreme Court of Canada
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….

 

 

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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.