[AUTHOR NOTE: I wrote this post early last year at the end of teaching my first iteration of Transystemmic Business Associations in UVic’s JD/JID program. I posted it to my personal blog so I could re-access resources when needed, but it seems to me it is worth re-sharing here, for those who might be thinking about drawing conversations regarding Indigenous Law into the Business Associations/Societies Law classrooms this year. Think of it less as a fully formulated teaching plan, than a set of resources and ideas around one way of getting at linkages in Canadian and Indigenous legal orders related to governance. Feel free to use, adapt, extend, critique or comment!]
One of the challenges in the Business Associations context is how to teach in ways that connect to the broad context in which economic work is situated (ie. not only in corporate boardrooms, but also in small businesses, local cooperative movements, and community-innovations). Another of the challenges for all law schools at this point is how to develop teaching resources that engage with Indigenous law, and Indigenous legal orders. In this point, I offer a few materials at the intersection of these two questions in the context of “LaRue Investments” and “Big River First Nation v Agency Chiefs Tribal Council Inc“. 2020 SKQB 273.
Let me back up to say that, over the years, I have drawn on some of the challenges that have emerged in the context of the family-owned closely-held corporation (LaRue Investments Ltd) that is the ‘owner’ of the Shuswap lands that have been such an important part of the growing up experience of so many in my extended family.
“The Lake” (as we call it) is at the centre of important identity-forming moments for so many of my siblings and cousins. It has also been at the centre of a series of family conflicts that have resulted in nearly 20 years of litigation, involving schisms between people. And so (given that much of the documentation is public), I have sometimes used moments of family history in the classroom, as a way of walking students through a ‘small-scale-but-story-rich’ case study to explore how the concepts we study in the statutory materials have application in many different locations. It is also a way of making visible that the phrase ‘business is business’, often hides another refrain, which is ‘business is personal’!
By this, I mean that an understanding of the affective and emotional dimensions of economic problems can be really important for solicitors. Indeed, it can be just as important as it is for lawyers doing family law, or wills and estates. But it can be a challenge figuring out how to “teach” emotion and affect in the context of the business associations classroom. Getting personal by using the family business has been one strategy. This makes taking seriously also ‘the ground’ on which the conflicts emerge.
For many years, I was also able to have the students think about how to work with a business client by bringing my mother Arta Johnson to class. She was the corporate memory for LaRue after the death of her own father, and had worked with many different lawyers over the years, as the family business had changed and grown. She was well positioned to talk to the students about challenges that had arisen, and about the things that she had done well, as well as about the mistakes that she had made. Quite a gift!
One of the gifts she was able to give us was the opportunity to grapply with “the making of a mistake”. Let’s call this mistake “Wrongly Removing a Director from the Corporate Registry”.
The short version of the story would be this: at one point during an emerging conflict, Arta believed that one of the Directors was not eligible to be a Director, so she went and filled out the Notice of Change of Directors form and submitted it to the Corporate Registry. The questions raised by the mistake were:
What is the appropriate process for removing a director?
What was the legal effect of submitting a form saying a director had been removed?
Might this action be called “oppression”?
What remedy would fix the harm?
NOTE: There are many longer versions of this event (which happened in 2003). If you want to follow the longer story, you can check out the history section of the LaRue Investments Ltd website. You will find there a set of video interviews in which Arta talks about the longer versions of this story.
In the classroom, I give the students all the background on this saga. It allows us to look at all the ways directors can be replaced, as well as at the relationships between Directors, and Officers. It lets us see that it is actually very simple to fix some mistakes (eg. all you have to do is submit a new Notice of Directors…no big deal). One can also see that the bigger problem might lie in the ongoing relationships between the parties, and not so much in the legal documentation. This is an important issue in the context of work with Indigenous legal orders, where relationality is a deeply important question in both legal process and legal remedies.
So, lets’s add in a piece of Canadian case law which engages with these questions in the context of Indigenous business associational forms. It is the case of Big River First Nation and Agency Chiefs Tribal Council Inc. The case comes out of the Non-Profit Sector, but gets at the same question as above: what happens when group A tries to remove someone from group B as a director?
What makes the case doubly interesting is that the Judge here refers not only to Canadian law (working with Saskatchewan law dealing with non-profit corporations), but also to Cree law.
Click on the link below for an 8 minute video I prepared about this case for students in my 2020 version of Law 315: Business Associations
The link below will connect to a PDF version of some of my handwritten annotations on a printed copy of the case (which can be useful for modelling to more visually oriented students ‘some’ of the ways a person might engage directly with a written text)
I will be so very interested to hear what others make of the case, and how these two stories together might facilitate some of the important conversations we need as we begin struggling towards ways of working through the complicated business of problem solving in this period of decolonial work.
In October of 2019, through ceremony conducted in Kumugwe (the K’omoks First Nation Bighouse), the Canadian Museum for Human Rights (CMHR) and Artist Carey Newman entered into “An Agreement Concerning the Stewardship of the Witness Blanket – A National Monument to Recognize the Atrocities of Indian Residential Schools” . Under this agreement, the Witness Blanket would find a permanent home in the Canadian Museum for Human Rights in Winnipeg.
A group of us from the Indigenous Law Research Unit at UVic had the privilege of being present at the Ceremony, watching as artist Carey Newman and the CMHR (through its President and CEO John Young) entered into an agreement to be Joint Stewards to the Witness Blanket. This agreement is on the cutting edge of transsystemmic law. It is governed, shaped, and enacted through a weaving together of Indigenous and Canadian legal understandings and protocols. It contains both written and oral commitments. More specifically, it draws both Kwakwaka’wakw traditional legal orders and Canadian Common Law into collaborative engagement. Click on the link below to read more about the Ceremony.
The experience of reading the Written Agreement and of attending the Ceremony was powerful on so many levels. In particular, it was an inspiration and education on what might be possible in the work of law, as we think about next steps forward in legal education and practice.
Drawing on this experience, we drew on the Witness Blanket during the January segment of our Legal Process class this year. In this post, we share a number of resources that might be helpful for people in law wanting to think more about many of the things to learn from both the Witness Blanket, and the Stewardship Agreement. At the end of the post are a few comments on our own first experiences of drawing the Witness Blanket into the law school classroom.
We note here that the Agreement is shared with the permission of both Carey Newman and the Canadian Museum of Human Rights. Their willingness to have the agreement shared and made publicly visible is both a gift, and a teaching. There is more to be said about this teaching, and about the powerful work of Ceremony, and the Oral component of this agreement. I hope to return to those in a later post.
For those who have not yet encountered the Witness Blanket, it is described on its website as follows:
Inspired by a woven blanket, we have created a large scale art installation, made out of hundreds of items reclaimed from Residential Schools, churches, government buildings and traditional and cultural structures including Friendship Centres, band offices, treatment centres and universities, from across Canada. The Witness Blanket stands as a national monument to recognise the atrocities of the Indian Residential School era, honour the children, and symbolise ongoing reconciliation.
There are two versions of the Documentary: one is 90 minutes, and the other is 55 minutes (edited down to make it easier for teachers to show it during a standard class time). You can contact the CMHR to arrange to have it streamed (no cost involved).
The documentary is powerful in so many ways, and can open room for many conversations:
It gets at the history and legacy of residential schools
It provides an introduction to the Indian Residential Schools Settlement Agreement
It enables one to listen to the voices of a number of survivors, and does this in ways that are contextualized and respectful, and which take up land, place, voice, memory, and more
it gets at the intergenerational transfer of trauma, and at avenues for disrupting those injuries and patterns (for Indigenous and non-Indigenous people alike)
it opens space for looking at the relationships between art and law (including questions about problem solving, process, creativity and collaboration)
Another great resource for background is a book about Witness Blanket, called ‘Picking up the Pieces”. The book contains a collection of stories and reflections on segments of the larger blanket. It has many colour photos, and lots of closeups, and is organized so that you can explore small pieces of the Blanket in more intimate detail (along with stories related to the objects)
Another resource is a 24 minute interview with Carey Newman on the APTN Program “Face-to-Face.” He was being interviewed at the Canadian Museum for Human Rights, during the launch of the book and Documentary “Picking up the Pieces: The Making of the Witness Blanket”. It is a lovely introduction to both the artist, and the work. Carey Newman speaks about community based and collaborative art practice, and there are some very interesting parallels there to legal practice and processes. Also some lovely thoughts on how to carry ‘the weight’ of difficult stories. I very much appreciated his comments about challenges in the ways we (artists and lawyers) attempt to tell complex and multi-layered stories.
A SIDE NOTE ON THE RELATIONSHIP BETWEEN THE WITNESS BLANKET, THE TRC AND THE IRRSA
It can be worth making visible the relationships between the Indian Residential Schools Settlement Agreement (IRSSA), the Truth and Reconciliation Commission (TRC) and the Witness Blanket. There were 5 main components to the IRSSA (which was the settlement of the largest class action in Canadian History. The first three involved agreements about payments that would be made to the parties to the action (still living survivors from a list of 139 schools co-managed by the federal government and 4 church organizations). But the last two components aimed at involving all Canadians in the discussion, and in the work ahead. These were:
The establishment of the TRUTH AND RECONCILIATION COMMISSION; and
The establishment of a fund to produce works of COMMEMORATION.
Of some significance is the fact that both the TRC and the Commemoration projects serve to benefit all of Canada. That is, you can see both these projects as funded not by the government or churches, but by the survivors themselves (as they chose to direct payments forward to the future, rather than directly to themselves). A moving gift to all of us.
And so, The Witness Blanket is one of the projects that emerged from the Commemoration component of the IRSSA, and is thus designed to engage all Canadians in the work of Truth and Reconciliation. For more on the Terms of Reference for both the TRC and the Commemoration fund, you can follow the link below (see Schedule J and Schedule N:
The federal government also has a webpage that organizes some information around Indian Schools Settlement Agreement (including summaries and links to more information on both the TRC and the Commemoration Projects.
As mentioned at the beginning, we used the Agreement as part of our teaching during the during our Legal Process course in January. Legal Process is a mandatory class for our first year students. The majority of the class occurs in the first two weeks of September. It is an intensive course where the students spend the two weeks in a combination of small and large group settings. In the context of the small sections, they work in groups of 20 or so students and 3 teachers. They return to those groups in January for 2 mornings which have been devoted in recent years to TRC work.
This year, the first morning focused primarily on the TRC, and the second morning on the Witness Blanket. The second morning, there were three primary activities related to the Witness Blanket:
The students watched the Witness Blanket documentary as a group (an hour)
Students then met in their small groups to read the Stewardship Agreement. They were given an “assignment” to help guide them in their reading. Note, the premise of the assignment was that students could imagine themselves wanting to produce a postcast episode about the Witness Blanket. There was no expectation that they would in fact complete such a task, but the hope was that this imagined activity might help guide their reading in ways that would direct their attention to the importance of sound, image, translation, collaboration and more.
Students returned with their questions to meet as a large group, where, through the magic of a Video linkup, they were able to listen to Heather Bidzinski (Head of Collections – Canadian Museum for Human Rights). She spoke to them about her participation in the creation of the Stewardship Agreement, in the Oral Ceremony, and about challenges, lessons learned, and what is being carried forward through this form of legal work.
One of the powerful take away lessons for me came in Heather Bidzinski’s comments to the students that there were nearly a dozen prior versions of the Agreement, and that the work of arriving at the ‘final version’ involved more than two years of ‘building relations’. In short, she told them that the most powerful learnings came in the work PRIOR to the signing of the agreement. The magic, she argued, is not so much IN the written text as it is in the RELATIONSHIP that was built between the Parties as they spent time and energy learning more about the ways they might work with each other.
This insight is helpful in thinking about how we do the work of teaching about the TRC in the classroom. There is lots to be said about the concrete lessons plans and teaching materials, but also lots to be said about what we learn in the process of planning and trying to implement those plans. Doing TRC related work is affectively challenging, and can require much from both faculty and from students. One can anticipate that this work is more or less difficult for different students. It is helpful to remain reflexive in the exercises, as there will be things to learn in each encounter about way to support learning, both by students and professors. We acknowledge that we are baby-learners in this work, and that there are a number of bumps and bruises (both to ourselves and others) as we try to move ourselves along this path.
Some things we considered in setting up the exercise included:
There is great power in film to help convey some of these histories. The Witness Blanket documentary is particularly powerful in this regard. Let the students know this in advance, so they can be prepared for the different learning that can be enabled where they can see/hear/feel an argument.
Let the students know in advance that some of the students (and faculty and staff) have personal experience with residential school histories. It is important to be alert to this in dealing with each other, and kindness and care are crucial. The more advance notice, the better. There is power in watching a film in a group, but it is also possible to leave space for students to do the watching in smaller or more intimate contexts.
If the material is linked to a mandatory element (as ours is), then it can be helpful to create space for some students who have concerns to complete the requirement through an alternative exercise (that does not require them to be in the classroom with other students).
We involved our Amicus team (counsellors and cultural support people), so that there were people and resources to support students for whom the affective load of the material felt too high.
For at least part of the time, students worked in small groups. Each group had two professors and a grad student assigned to it, so there would be a range of experiences to draw on and from.
Advance workshops for faculty or students on Trauma-informed practice can be helpful. It also can be useful to create space for Faculty to work with each other in advance, so that they feel comfortable both with the material, and in working with students. It is helpful to remember that we, like the students, are often coming to the game with some gaps in prior knowledge about residential schools. Some tenderness and care with each other (and not only with the students) can be very helpful in doing TRC work in the law school.
There is undoubtedly more to say, and there are many ways to learn with and from the Witness Blanket Agreement. Certainly, for those of us in Law, the work of truth and reconciliation is the work of a lifetime. It is hopeful having models to look at, models that can help us think through more useful questions about ways to do the work. The hope is that these resources/links can provide some context for others to also explore the power of this Agreement for the teaching and practice of law.
We would love to hear ideas and thoughts about things you have tried in your own classrooms and law schools, as well as comments about things that might be done differently!
The pursuit of reconciliation between Indigenous and non-Indigenous Peoples is becoming more and more widespread, permeating unexpected aspects of Canadian life. Many teachers across the country are eagerly taking up this challenge, but sometimes struggle to find accurate and appropriate lesson plans to work with.
The Confederation Debates took up this challenge in one small area by developing mini-units for grade 7-12 teachers that bring Treaty histories into Confederation discussions. For historians and legal scholars, the term “Confederation” is usually constrained to visions of the 1864 conferences at Charlottetown and Quebec City with the likes of John A. Macdonald, George-Étienne Cartier and Leonard Tilley. A charitable few academics extend this to include the Red River Resistance (around present-day Winnipeg), British Columbia and Prince Edward Island, which all entered Confederation by 1873. Even these depictions leave out many of Canada’s provinces as well as Indigenous Peoples not present for the Red River Resistance.
The Confederation Debates challenges these preconceptions. In addition to expanding the temporal scope of “Confederation” to include Canada’s most recently added provinces and territories, its leadership wanted the project to affirm that Indigenous Peoples were — and continue to be — “partners in Confederation” (as the Royal Commission on Aboriginal Peoples insisted). Thus, on the project’s website, treaty texts and records of treaty negotiation are positioned alongside the verbatim records of legislative debates about each province’s decision to join or reject Confederation.
While the project lacked the resources to reproduce the texts of all historic and modern Treaties, along with the records of their negotiation our team, a multi-disciplinary team comprised of Robert Hamilton, Daniel Heidt, Jennifer Thivierge, Bobby Cole and Elisa Sance, developed educational mini units that allow grade 7/8 and high school students across the country to develop a multifaceted understanding of their province’s entry into Confederation. To guide this team’s work, the project’s leadership sought the guidance of John Borrows, who provided helpful and regular oversight. Each mini-unit, catered to address each province’s curriculum requirements, is split into “parliamentary” and “Indigenous” sections. The former provides the research sources and original records necessary for an engaging mock parliamentary debate on a province’s entry into Confederation. The latter section contains two lesson plans about Indigenous peoples and their roles in shaping the country.
In developing these lesson plans, we sought to challenge historical narratives which minimize or erase the role of Indigenous peoples, providing an understanding of Confederation which recognizes Indigenous agency. This required rethinking notions of Confederation that construed Indigenous peoples as cultural minorities within a broader political community. These activities were developed to emphasize simplicity, Indigenous agency, and fiduciary obligations. To that end, the mini-units begins with a brief summary for teachers about conceptualizing confederation:
There are two very distinct stories we can tell about Confederation and Canada’s Indigenous Peoples. In one story, Indigenous Peoples are largely invisible. Here, their only presence is found in s.91(24) of the British North America Act, 1867, where “Indians, and lands reserved for the Indians” were deemed to be federal, as opposed to provincial, jurisdiction. This has subsequently been interpreted as providing the federal government with a power over Indigenous Peoples and their lands. The Indian Act of 1876, which is largely still with us today, was passed on this basis. This created what political philosopher James Tully has called an “administrative dictatorship” which governs many aspects of Indigenous life in Canada. Many of the most profoundly upsetting consequences of colonialism are traceable in large part to the imposition of colonial authority through s.91(24) and the Indian Act of 1876.
But there is another story as well. Canada did not become a country in single moment. Though the British North America Act, 1867, created much of the framework for the government of Canada, Canada’s full independence was not gained until nearly a century later. Similarly, the century preceding 1867 saw significant political developments that would shape the future country. Canada’s Constitution is both written and unwritten. Its written elements include over 60 Acts and amendments, several of which were written prior to 1867. The Royal Proclamation, 1763, for example, is a foundational constitutional document, the importance of which is reflected by its inclusion in s.25 of the Canadian Charter of Rights and Freedoms. The Royal Proclamation, 1763 established a basis for the relationship between the British Crown and Indigenous Peoples in North America. By establishing a procedure for the purchase and sale of Indigenous lands, the proclamation recognized the land rights of Indigenous Peoples and their political autonomy.
Both the pre-Confederation and post-Confederation treaties form an important part of this history and what legal scholar Brian Slattery calls Canada’s “constitutional foundation.” It is through Treaties such as these that the government opened lands for resource development and westward expansion. It is also through the treaty relationship that Indigenous Peoples became partners in Confederation and helped construct Canada’s constitutional foundations.
Our challenge was to present narratives of Confederation that provide students with a glimpse into the complexity and pluralism in Canada’s founding in ways that were historically accurate and accessible for students in the grade ranges we targeted.
Towards this end, we developed two exercises focusing on Indigenous issues as part of the lesson plans. The first is a “leaving a trace” exercise that helps students to understand how cultural misunderstanding can come about, as well as how historical events are shaped by both the chronicler and the interpreter of historical narratives. The exercise requires students to silently draw their own recent activities or conversations and then ask their peers to interpret those ‘records’ without any contextual information. This exercise encourages students to think critically about the materials used in their second activity.
The second activity is a mock “museum curation” exercise where students learn about a Treaty in their province by breaking into groups to study one of up to six ‘artifacts.’ One group researches the treaty, other groups study Indigenous and Crown negotiators, and at least one group studies a cultural object that was important to the negotiations. For example, in the British Columbia exercise, groups receive one of the following:
Text of a Vancouver Island Treaty
Biography of Sir James Douglas
Biography of David Latass
Biography of Joseph Trutch
Written description of the WSÁNEĆ reef net fishery
Records of treaty negotiation and comments on treaty implementation
Each item or historical figure was carefully chosen for the historical information and perspectives they exemplified. Teachers also have a list of questions to guide discussion. The first group is provided with a text of one of the Vancouver Island Treaties. We felt that it was crucial for students to actually engage the text of treaty.
Using these ‘artifact’ records, each group is expected to produce an exhibit to share their findings (ex. a diorama, poster etc…) and the teacher then guides the class through the exhibit with questions designed by our team to spur discussion. In the case of the Vancouver Island Treaty, for example, the questions include:
What rights and responsibilities are recognized in the treaty?
The treaty uses complex and technical legal language. Did you find it easy to understand?
Would it have been difficult for people who did not grow up speaking English to understand the language used?
Which of the parties to the treaty might have benefitted most from having it written this way?
How might current understandings of the treaty be shaped by the fact that the only copy is written in English and articulated in dense legal language?
What might be missing from the treaty as it is presented here?
These questions were designed to help teachers to guide the students through a critical reading of the text while developing their critical faculties. Some of the questions could elicit quite sophisticated answers. But we also believed that it could open students’ (and perhaps even teachers’) minds to new ways of understanding treaty relationships.In addition to these questions, The Confederation Debates encourages teachers to invite local Indigenous leaders to also join this tour, hoping that it will allow these local leaders to comment on the displays and raise important questions about representations of historical relationships and the nature of the Crown obligations undertaken in the treaties.
Taken together, our team hopes that these activities will be one of the many tools that teachers will use to help their students explore history, historical narratives, Indigenous agency, and the meaning of Confederation. By helping students to learn that Confederation encompasses all of Canada’s provinces, territories and Indigenous Peoples, we hope to foster dialogues that will improve Indigenous and non-Indigenous relationships.
This work, however, is not yet finished. To complete its bold vision of educational materials, the project is still in need of volunteers. Despite undertaking considerable preliminary planning, the project ultimately lacked the resources to complete mini-units for the territories as well as Newfoundland and Labrador. If anyone is interested in co-developing the Treaty sections of these mini-units, please contact one of us and we’ll be happy to share the work completed to-date.