Law & Culture: Drawing Texts, Masks and Blankets into the Law School Classroom

One of the big questions for me over the past years (thinking about our Law School TRC obligations to learn and teach about Indigenous Law) has been the relationship between law and culture. Or maybe more specifically, how to talk about these relationships in the law school classroom.

In this post, I share some materials I tried out last year, materials that I think could be drawn on in a number of different classroom contexts. I pause for a moment to thank my colleague Professor Bob Howell, who (following a number of fun hallway conversations) invited me to explore some questions with the students in his Cultural Property class. Below are some notes on the three things we drew into the classroom:

  1. Law vs. Culture (in Legislative Texts)
  2. Legal Orders in Conflict: A BC case involving the sale of Hupacaseth Masks
  3. Legal Orders in Collaboration: Some comments on the Stewardship Agreement related to the Witness Blanket.

1. Law vs. Culture (Legislative Texts)

We began with questions about ‘law’ and ‘culture’ as important key words. Because the students in Bob’s class were working closely with both UNDRIP and UNDRIPA (new legislation affirming UNDRIP, and setting out a framework for its implementation in Canada)), I looked at those two texts more closely than I would otherwise have done, and got stuck on drawing comparisons between the two sections below. The column on the left (from UNDRIPA) makes an assertion about UNDRIP (the column on the right), appearing to simply draw it into the newer text. But the two sections are not quite identicial, and the differences can open space for a discussion about the key concept of ‘the legal’ and ‘the cultural.’

First, the text highlighted in green directs our attention to the VERB: in 2007, the verb points us at RECOGNITION of inherent rights. in 2021, the verb gives us an emphasis on the importance of this recognition.

The black portion of the text is identical in each version: the need to respect the rights of Indigenous peoples, including rights to lands territories and resources.

The purple text, which is the same in each, tells us where those inherent indigenous rights come FROM: “political, economic, and social structures”. In short, “structures” of the kind that are often seen as distinct from law (here, you can imagine the plethora of courses titled “Law and Economy”, or “Law and Society” or “Law and Politics”. ) At this point, one could generate class conversation about the ways in which law is or is not assumed to be distinct from these ‘meta’ structures.

The text continues, with the section highlighted in blue; this adds adds additional sources from which the rights of indigenous peoples might derive. Here, we move to culture, spirituality, history and philosophy. There is again room for discussion about the ways these forces (or accretions?) are important places for conversation and engagement.

What is particularly interesting to me is the text in red, present in the 2021 version and absent in 2007: “and legal systems”. Here, there is room for significant discussion in the classroom about the ways that this absence/addition makes visible the ways in which the law/culture divide can be deployed. What seems to be at stake here is how we understand these two important key words, as well as the assumption (2007) that Indigenous peoples have culture and NOT law.

From the perspective of legislative drafting, it is also interesting to think about the ways that the words “and legal systems” are added into the 2021 version ‘as if’ they had been present in the 2007.

The comparison of these two sections in the classroom needn’t lead to any conclusions (ie. which is the right or wrong way to approach the questions). The goal might simply be to help visibilize the different ways law and culture are discussed in these texts, and to remind the class that the relationships of law and culture might take different form in different legal orders.

2. Legal Orders in Conflict: The Case of the Cedar Masks

The second thing we talked about in class was a 2013 case in which a pair of Hupacasath cedar masks were (wrongfully) sold in an on-line auction. The nugget of the story is this: one person in a family (“X”) sold these masks to an online auction house. The auction house relied on the existence of the grandmother’s Will to determine that X had good title. That is, they presumed that the masks fell into the category of ‘household possessions’ that had been left to X under their grandmother’s will. The extended family disputed X’s claim, asserting that X was only a steward for the masks that were collectively owned. The auction house continued to rely on the will, and finalized the sale of the masks to an anonymous buyer. Unable to retrieve the original masks, the family held a public ceremony in which X was stripped of their name and title. A new mask was carved, and at the ceremony, the songs and dances that travelled with the older masks were attached to the new mask.

In the classroom time, I talked to the class about having used this case in the criminal law classroom, to ask how you would address the question of the mask having been wrongfully sold according to both Canadian Law and Hupacaseth Law. First off, even within Canadian law, how would the problem to be dealt with if it was understood as a Criminal Law problem (theft, fraud, possession of stolen goods). How would it be dealt with if it were understood as a problem of Property Law or of Wills & Estates? Further, is a mask (which has songs and dances that go with it) to be best understood as “property”, or also to be understood as related to practices of “governance”? You can also take up the question of Conflicts of Law? Whose legal order is to apply when people from multiple legal orders are engaging with the same object?

There are a cluster of newspaper articles you can look at to get a sense of the story, as well as a sense of how it has been talked about in the media:

In her work on Indigenous Property Law, Val Napoleon has posed a number of really helpful questions we can start asking (particularly when it comes to working with societal and cultural production):

  1. What kind of property is this?
  2. Who is the owner?   
  3. What is the underlying purpose of the property?  
  4. What is the legal harm or injury? 
  5. What are the range of historic and present day remedies?

These are great questions to give to the students as they engage with the case. It really helps make visible the power of focusing on QUESTIONS that students might start asking (rather than focusing only on answers to questions). It can provide a richer scaffold for discussion about the strategies for working forward. In the classroom context, we likely spent 20 or so minutes in a rich discussion of the challenges (and of the ways that the problems in this case could help the students think about the international law dimensions of challenges in our own backyard). NOTE: I am currently trying to write the story of these masks in a chapter for an upcoming book on Indigenous Intellectual Property. If you want to see a draft of that article, click here.

3. Legal Orders Working Together: The Witness Blanket Stewardship Agreement

The third thing we looked at in class was “The Witness Blanket, a monumental piece of work by Cary Newman. The Witness Blanket, which is comprised of more than 900 objects and stories, was produced in response to the Indian Residential Schools Settlement, and is currently lodged at the Canadian Museum for Human Rights in Winnipeg. There is a really great website, on which you can see images of, and take a tour of the The Witness Blanket. Also, here is a link to another post on this blog that provides a number of teaching resources for drawing the Witness Blanket into the law school curricula.

One of the advantages of talking about the Witness Blanket next was to make space for looking at more transformative and collaborative responses to the kinds of difficulties made visible in the masks case. This gave us a chance to focus not only on the punitively focused judgement of the past (ie. what went wrong, who was guilty, etc), but also on more positive forward loooking mechanisms to provide joint responses even in the face of different legal orders and different understandings of things.

One of the particularly astonishing things about the Stewardship Agreement is that, rather than having a “choice of law” clause, it makes explicit that it is to be governed by TWO legal orders!

This clause generated some interesting conversation, as we discussed the possibilities that emerge where the focus of the agreement is not on the rights of those signing, but on the responsibilities of those signing to the substance of the agreement, in this case, their joint agreement to care for something (the Blanket itself is the only entity with ‘rights’ under the agreement, the other clauses deal with obligations and responsibilities).

In class, we spent our time primarily with the written text of the Agreement. Depending on the time you have available in class, Here is a screen shot of (my annotated copy of) the first page of the agreement, which asserts that participation in ceremony (culture? law?) is necessary to the full realization of the agreement. That is, the divide between law and culture is made porous (or rather, the law IN culture is made visible).

The agreement makes BOTH 1. written agreements (the stuff of our contracts classes) and 2. cultural ceremony (generally not taken up in law school classrooms) central to the business of doing legal work together. It does NOT presume that written agreements belong only to settler citizens, and ceremony only to Indigenous citizens, but provides a scaffold through which people from different legal orders can draw the tools of their law into engagement with eachother.

We spent a bit of time talking about the oral/ceremonial part of the agreement. Having been present at the ceremony, I could tell them that the experience was affectively powerful. But, to make visible to them that ceremony can be powerfully experienced for people outside of our law community, I have also pointed people to a blog post by my mother, Arta, who also came along to the ceremony: in that post, they can get an ‘outsider’ report on the experience, as well as see someone outside of the law school doing the work of witnessing, and sharing with others both what they saw, and their experience of ceremony.

In our conversation about the oral ceremony, we also discussed the requirement of the written agreement that there be a renewal of the oral ceremony and feast every 4-5 years. This pattern of repetition can be a particularly helpful model in the context of agreements involving “INSTITUTIONS”. If one keeps in mind that the Directors of CMHR (or most other organization or governmental body) can completely change every 4-5 years, you can see that there is a problem of MEMORY. If all your directors change or move on to new jobs, then you are left with a group of folks who do not carry affect laden memories from the power of ceremony. By organizing for a regular return to ceremony, you can create the conditions for keeping the agreement alive with Institutions and Institutuional Actors in ways that are not possible where you rely completely on the (important by not affect laden) written text.

In the context of the classroom, this also opened space for a conversation about student engagement with a variety of ceremonial contexts (both Indigenous and non-Indigenous), and the ways that we can better engage with the ways that these cultural/legal practices generally incorporate a rich tapestry of sounds, visual fields, movements and practices of witnessing.

There you go. It would be great to hear about things others are trying in their classrooms, or about other resources you have drawn on to think through the productive relationships of law and culture.

LAST NOTE:

If you want to do more work with the students on how ‘law’ may be differently structured in legal systems and legal orders (while still being ‘law’), then take a look at Val Napoleon’s article, “Thinking About Indigenous Legal Orders.” In Dialogues on Human Rights and Legal Pluralism, edited by René Provost and Colleen Sheppard, 229-45. Dordrecht Heidelberg New York London: Springer, 2013.

Some Business Associations Materials (‘LaRue’ meets ‘Big River First Nation’)

 businesslawPegadogy Indigenous LawLaRue

[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.

big-river-first-nation-2020skqb273Download

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’!

Family ties to eachother and the land

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.

Cedar boughs in the forest on the family property (which is on unceded lands in Secwepemculecw)
Cedar boughs and thimble berry in the forest at the lake

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

https://echo360.ca/media/e28ce6f9-fbc4-4a5e-9a33-69e6d9e5d7e2/public

If you need a bit more backstory on the legal pieces before jumping into the ‘classrooom link’, here are a few more resources. First, here is a summary of the case from CanLII.

https://canliiconnects.org/fr/r%C3%A9sum%C3%A9/73312

Here is a blogpost about the case by (former law student) Miny Atwal.

https://indigenouseconomies.wixsite.com/main/post/big-river-first-nation-v-agency-of-chiefs-tribal-council-inc-2020-skqb-273

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)

26-big-river-first-nationDownload

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.

Reconciliation in a Real Property Securities Course – Not Necessarily a Missing Lien!

In 2019 and 2020, I taught a course on real property securities (Sûretés immobilières) at the Université de Moncton. This course traditionally focuses on the creation and enforcement of land securities based on mortgages, mechanic’s liens and registered judgments. Inspired by this blog and from colleagues around the country attempting to include their private law courses (broadly defined) in their reconciliation initiatives, I set out to dedicate about 3 hours (a weekly session) to this topic in my syllabus. My initial knowledge about this was limited to sections 29 and 89 of the Indian Act prohibiting charges, attachment, seizure and execution on property situated on a reserve:

89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

29 Reserve lands are not subject to seizure under legal process.

Indian Act, R.S.C., 1985, c. I-5

At first, I was a bit worried that the general un-applicability of mortgages and other charges on reserve lands would make for a very quiet 3 hours of class. However, the learning journey I embarked on to prepare this class took me much further than I anticipated and now resonates throughout the entire course.

I have found that studying the absence of real securities in reserves has shed a new light on many other aspects of the topic; it has worked as an effective entry point to understand the rationale for and socio-economic effects of real securities in mainstream society as well as a way to talk about the link between living conditions and economic development on reserves and the legal framework under which they operate.

In what follows below, I will share some of the key takeaways I wanted students to learn in this class, four activities I designed for the class, extracts from some of the primary resources I relied upon and some personal reflections on this ongoing journey.

KEY TAKEAWAYS

  • The existence of securities (i.e. pledging one’s rights to property to someone else in order to guarantee the execution of some obligation) is contingent on the regime of private ownership of land;
  • Private ownership and securities derive from the Western philosophical, political and legal approach to land and obligations but are not universal concepts and are not consistent with all existing worldviews;
  • In mainstream society, secured transactions are key to access financing (=credit), which in itself is a crucial factor for economic development;
  • Lack of financing leads to cheap repairs (e.g. to housing infrastructure), which cost more in the long run for marginal and temporary improvements; with financing, it is possible to invest in more efficient and more durable repairs or improvements;
  • The reserve system has been a cornerstone of Canadian colonial policies since the 18th century with devastating consequences on Indigenous communities (forced displacement to barren lands, forced dependency on economic exchanges with or charity from colonial settlements, destitution); it has also entrenched a communal ownership system which, when properly applied, protects communities against alienation of their lands to external creditors, albeit under the paternalist supervision  of the federal government rather than as a self-determination mechanism;
  • The Indian Act’s limitation of real property securities on reserved lands to leasehold interests (or at least the way in which the Indian Act has been applied and misapplied) has played an important role in the perpetuation of poverty and despicable housing conditions on reserves, especially in the absence of robust alternatives to access financing;
  • The limited impact to date of federal initiatives such as the First Nations Land Management Act and ministerial loan guarantees to make financing as available in reserves as in other segments of society;
  • The importance of self-determination in potential reforms of the property regime, possibilities of alienation of land, and alternative ways to obtain financing and socio-economic development on reserves.

FOUR LEARNING ACTIVITIES:

Activity 1: (Reminder of) the diversity of worldviews on property

Assuming that students had been introduced to Indigenous perspectives on property in previous courses (especially in 1L), I wanted to remind them of what they already knew about the difference between Indigenous and settler approaches to property.

I assigned an extract from Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9; I chose this source because it was on the syllabus of the Property course they had taken 1 or 2 years prior.

By way of contrast, I assigned extracts from the Book of Genesis (chap 1, verses 26-28), Blackstone’s Commentaries on the Laws of England (Book II, Chap 1) and Locke’s Treaty on civil government (Chap V, para 25-44) to illustrate the Western society approach to property.

The goal was to illustrate the genealogy of Western view on private ownership of law, show how the idea of land securities derive from it but is at odds with traditional Indigenous approaches to land.

Indian ownership of property, and in this case, land, is wholistic. Land is communally owned. Indian property ownership is somewhat akin to a joint tenancy: the members of a tribe have an undivided interest in the land; everybody, as a whole, owns the whole. […] It is as though the original grantor of the land to the Indians put a condition on it … “so long as there are Indians”; “so long as it is not alienated”; “on the condition that it used only by Indians” etc. In other words, the Indians’ concept of title is not equivalent to a fee simple, but is somewhat less than a fee simple. […] If one attempts to trace the Indians’ source of title, one will quickly find the original source is the Creator. The Creator, in granting land, did not give the land to human beings only but gave it to all living beings. This includes plants, sometimes rocks, and all animals. In other words, deer have the same type of estate or interest as any human being.

Leroy Little Bear, “A Concept of Native Title” [1982] 5 BCAJ/ CLAB 9 at 101-103

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Sir William Blackstone, Commentaries on the Laws of England 1753 (Book II, Chap 1)

Bible, Book of Genesis, 1:26

Activity 2: Instructions to practioners dealing with mortgages on reserve lands

I asked students to read an institutional lender (e.g. a large bank)’s specific instructions to lawyers dealing with mortgages on reserve lands[1] or the “Leasehold mortgages and Lender Protection” section of the Canadian Bar Association’s Mortgage Instructions Toolkit.[2

Earlier in the course, the students had read a set of general instructions they would receive from an institutional lender when asked to register a mortgage. The benefits of looking at practice documents specific for mortgage transactions affecting reserve lands include:

  • conveying the message that checking whether the land affected by the mortgage is located on reserve is part of general due diligence for such transactions (thus making the issue relatable for practice-oriented student minds);
  • signaling that when this is the case, additional or different endeavors are required compared to usual transactions.

The specific instructions will highlight that a mortgage on reserve land can only take the form of a leasehold mortgage. This will in turn trigger two sets of questions and discussions:

First, the “why” questions:

  • What is the legal frameworks for mortgages on reserve lands?
  • Why is it that way? (answers to this question are complex and nuanced; they involve speaking on the one hand about the protection of reserved lands against further physical, economic and philosophical alienation and on the other hand about the history of displacement, broken promises, one-sided application of the Indian Act, paternalism, etc)

Second, the “so what” questions:

  • “what is a leasehold mortgage?”
  • “what can execution of a leasehold mortgage look like for the lender in case of case of default on the loan?”
  • “what is the value of such a security for the lender?”
  • “how does this affect the willingness of creditors to take such a security in exchange for a loan?”

Activity 3: ‘Discovering’ the housing conditions of Indigenous communities on reserve

I introduced students to evidence (statistics, photographs, etc) to make them understand what lack of repairs to homes can mean and look like:

44% of First Nations on reserves live in dwelling in need of major repairs, compared to 6% of the general population.

37% of First Nations on reserves live in overcrowded dwellings, compared to 8,5% of the general population.

Statistics Canada, (2017) “The housing conditions of Aboriginal people in Canada”
Red Sucker Lake First Nation (Manitoba)
Mould in a bedroom shared by several children (Sandy Lake First Nation, Ontario)

In addition to statistics and photographs, I also emphasized the multi-dimensional effects of such situations, including increased risk of fire and mold growth, physical and mental health risks (respiratory illnesses, depression, sleep deprivation, family violence) and socio-economic consequences (poor educational achievement, inability to retain skilled and professional members in the community).

This activity aimed at illustrating the connection between access to financing and living conditions. Living conditions are also a proxy to talk about socio-economic development more generally, thus integrating the residential and commercial uses of land securities.

Activity 4: Imagining solutions

I did not want to leave students with the impression that this state of things was inevitable. I gave an overview of some government programs aimed at addressing the issues, such as the First Nations Land Management Act and government loan guarantees. This included a discussion of the following points:

  • The centrality of the idea self-determination when designing and implementing solutions (with reference to UNDRIP, art 3,4);
  • Pros and cons of abolishing the relevant sections of the Indian Act;
  • Ways to exert self-determination on land management;
  • Alternative forms of land ownership, alienation and management to be agreed upon through modern treaties;
  • Emerging Indigenous-owned-and-managed financial institutions;
  • Accounting for the diversity of situations, perspectives, needs and preferences among Indigenous communities, including their own legal traditions, geography, state of affairs…

Of course, we didn’t leave the classroom with a clear, universal and easy-to-implement solution. Engaging with a wide range of possibities and their inherent complexity was the main goal here.

PERSONAL REFLECTIONS

I recognize that this is a lot more I need to learn to be truly proficient regarding the issues mentioned above, both on the legal and the cultural aspects. The Real Property Securities course was the first course I taught as a full-time faculty member and was my first attempt at integrating the lessons of the TRC in my teaching. It has been a tremendous learning journey.

I realized that studying the absence of real property securities for land on reserves taught us a lot more than expected about real property securities in mainstream society, both with regard to their necessary connection to the idea of private ownership and to their role in socio-economic development.

This illustrates the amazing potential of studying Indigenous issues in “seemingly-unrelated-law-courses”; it serves at the same time to educate all students on the history and contemporary realities of many Indigenous communities, including the role of legal institutions and actors in it, and give human and social meaning to otherwise doctrinal topics, well beyond Indigenous issues themselves.

Dedicating a 3-hour session to this inquiry in my term-long course has not been a parenthesis to take a break from the serious study of mortgages and mechanic’s liens; to the contrary, it has provided a space to analyze the causes and social consequences of these legal institutions and deepen the understanding of their functions in society.

Key resources to learn more on the topic (and eloquent extracts):

Indian Act, RSC 1985, c I-5, ss 2, 18, 20, 28, 29, 89

First Nations Land Management Act, SC 1999, c 24

UNDRIP, s 3, 4

Scott Hitchings, “Real Property Security on First Nations Reserved Lands” (2017) 80 Sask L Rev 125

Scott Higgins, “Real Property Security on Indigenous Lands” (2018) 83 SCLR 317

24. The housing situation in Inuit and First Nations communities has reached a crisis level, especially in the north, where remoteness and extreme weather exacerbate housing problems. Overcrowded housing is endemic. Homes are in need of major repairs, including plumbing and electrical work. These conditions add to the broader troubling water situation in First Nations reserves, in which more than half of the water systems pose a medium or high health risk to their users. The housing crisis has been identified by Inuit representatives as a high priority issue. It is worth noting that the chronic housing shortage has a severe negative effect on a wide variety of economic and social conditions. Overcrowding contributes to higher rates of respiratory illness, depression, sleep deprivation, family violence, poor educational achievement, and an inability to retain skilled and professional members in the community.

26. Overall, investments have not kept pace with the demand for new housing or the need for major renovations to existing units. Government representatives have attributed the lack of adequate funding in a large measure to the difficulties presented by the communal ownership of indigenous lands in obtaining mortgages or financing for housing. In response, the Government has established loan guarantees, for which First Nations can apply, to provide security for on-reserve housing loans. Despite loan guarantee increases in recent years, much more remains to be done to provide secure loans for housing, both on and off reserve, in a way that respects and accommodates for the communally held nature of aboriginal lands.

James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, The situation of indigenous peoples in Canada, 2014 online: https://www.ohchr.org/documents/issues/ipeoples/sr/a.hrc.27.52.add.2-missioncanada_auv.pdf at para. 1-28

Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (Interim Report) (February 2015), online: https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf

Joan Kendall, “Circles of Disadvantage: Aboriginal Poverty and Underdevelopment in Canada” (2001) 31:1 Am Rev Canadian Studies 43 at 51 (highlighting the following additional barriers to obtain financing: lack of education and business experience, the difficulty of coming up with initial down payments and the remoteness of the communities)

Was the Indian Act the cause of the First Nations’ poverty in Canada? Many would like to say yes, but the answer is no. It was the misuse of the Act by Indian Affairs bureaucrats to oppress First Nations peoples that caused the poverty. If competent and non-biased people had administered it from day one, I firmly believe that the results today would be far different.

The Indian Act was not designed by bureaucrats to preserve First Nations cultures and see them prosper, but to deliver the final blow. Fittingly, as a measure of poetic justice, it has turned out to be a salvation. The men who sought to destroy our cultures, motivated by their racist perceptions of themselves as products of superior civilizations, would roll over in their graves if they knew the actions they had taken to facilitate the demise of First Nations were the very actions that ultimately saved them. […]

The Act is only an inanimate piece of paper, unable to do anything on itself. Just as for any other law, it is the individuals applying it who give it life. Those responsible for administering the Act chose to give it life by showing a disdainful indifference toward the trust and other legal obligations that its provisions prescribed. Let us note that from its enactment tin 1876 and until very recently, the Ministry decided to use the provisions of the Act in an attempt to destroy the First Nations civilizations through assimilation. That is, I believe, what we call a cultural genocide.

Daniel N Paul, L’Histoire des Premières Nations : Ce n’était pas nous les sauvages, 2020, Mouton Noir Acadie at 316-317 (available in English: First Nations history : we were not the savages : collision between European and native American civilizations, 3rd ed, 2006, Fernwood)

[1] See e.g. for RBC: “Additional Instructions to Lawyer Leasehold Mortgage on Indian Lands” https://www.rbcroyalbank.com/legalforms/nb-residential.html

[2] See https://www.cba.org/Publications-Resources/Practice-Tools/Mortgage-Instructions-Toolkit/Leasehold-Mortgages-and-Lender-Protection

[3] Statistics Canada, “The housing conditions of aboriginal people in Canada” (25 October 2017) Census in Brief, online: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016021/98-200-x2016021-eng.cfm

[4] There are numerous examples in  Interim Report of the Standing Senate Committee on Aboriginal Peoples, Housing on First Nation Reserves: Challenges and Successes (February 2015), online; https://sencanada.ca/content/sen/committee/412/appa/rep/rep08feb15-e.pdf; additional local examples can be found in news sources.

No Reconciliation Without Truth: A Reckoning for University Honouring Practices

On June 3, 2021, the following letter was signed by 46 faculty and staff members of the Peter A. Allard School of Law and sent to the Senates (Vancouver and Okanagan) and Board of Governors of the University of British Columbia. The letter calls on these bodies to promptly and without unnecessary debate revoke an honourary degree granted by UBC to Bishop O’Grady, the former Principal of the Kamloops Indian Residential School. There is no debate to be had here – revocation is one necessary, though not sufficient, step toward acknowledging the truth about Canada’s Residential Schools legacy and the complicity of universities and other institutions in that legacy and settler colonialism more broadly. Acknowledging this truth is also one part of the larger work of law faculties in response to the Calls to Action made by the Truth and Reconciliation Commission. Acknowledgement, though, must also be accompanied by action and reparation, especially from an institution that continues to profit from the unceded lands of the Musqueam people. More is needed, including a systematic review of honourary degree awards and naming practices from all post-graduate institutions in Canada. But we hope the small steps called for in this letter can be taken immediately in response to the confirmation of what survivors have long been saying about the genocidal history of residential schools in Canada. Information about how to support Tḱemlúps te Secwepemc, including through monetary donations, can be found here. [Introduction by Kristen Thomasen and Debra Parkes]

***

To the Senates and Board of Governors of the University of British Columbia:

As you know, in 1986 – the same year when some institutions began to acknowledge their complicity in the colonialism of residential schools[1] – the University of British Columbia granted Bishop John Fergus O’Grady an honorary doctor of laws.[2] O’Grady was Principal of the Kamloops Indian Residential School from 1939 to 1952.[3] On May 27, 2021, Tk’emlúps te Secwépemc First Nation confirmed the identification of remains of 215 children, some as young as three years of age, on the site of what used to be Canada’s largest residential school.[4] This announcement follows many decades of survivors, First Nations and community members seeking answers and accountability for the disappearances of their loved ones. Many other children remain missing and unaccounted for: to date, the Truth and Reconciliation Commission has identified names or information about at least 4,100 children who died in Canada’s residential schools.[5]

We write as faculty and staff of the Peter A. Allard School of Law, with a mind to our obligations under the Truth and Reconciliation Calls to Action, and as gatekeepers to a profession that has been, and continues to be, instrumental in upholding colonial genocide in this country. We call on the UBC Vancouver and Okanagan Senates to revoke this honorary degree immediately.

Revocation, while an important symbolic gesture, is insufficient if not backed by concrete action. We also call on the Senates to accompany this gesture with an acknowledgement of UBC’s complicity, as well as material reparations. We call on UBC to contribute material support for efforts in B.C. to locate further unmarked gravesites, as well as to maintain the sites of former residential schools, as Indigenous leaders and experts are calling for. 

We hope these immediate steps can be taken without debate or delay.

We further call on the UBC Senates and Board of Governors to embark on a systematic review of past honorary degrees and naming practices with a view to redressing the ongoing harms of UBC’s role in upholding colonial genocide.


[1] E.g. the United Church of Canada initially apologized to First Nations for its role in residential schools  in 1986: https://united-church.ca/sites/default/files/apologies-response-crest.pdf

[2] UBC Archive: https://www.library.ubc.ca/archives/hdcites/hdcites8.html; Prince George newspaper on O’Grady’s retirement discussing the award: http://pgnewspapers.pgpl.ca/fedora/repository/pgc:1986-10-14-09

[3] Charlie Smith, “UBC will review honorary degree granted to former Catholic Bishop John Fergus O’Grady” The Georgia Straight (31 May 2021): https://www.straight.com/news/ubc-will-review-honorary-degree-granted-to-former-catholic-bishop-john-fergus-ogrady

[4] Media release: https://tkemlups.ca/wp-content/uploads/05-May-27-2021-TteS-MEDIA-RELEASE.pdf

[5] Truth and Reconciliation Commission of Canada Missing Children Project:  http://www.trc.ca/events-and-projects/missing-children-project.html; The Final Report of the Truth and Reconciliation Commission of Canada, “Canada’s Residential Schools: Missing Children and Unmarked Burials” (Volume 4):  http://www.trc.ca/assets/pdf/Volume_4_Missing_Children_English_Web.pdf 

Reconciliation Summer Reading List? “At the Bridge: An Anthropology of Belonging”

[EDITOR NOTE:  I wrote this blog piece for my personal blog rebeccaj63.wordpress.com], but I am re-posting it here as I think it is something that may be of interest to Law folks looking for resources for TRC-engaged teaching and learning.  This book is a goldmine re h TRC#28’s call for education about Indigenous law, Aboriginal-Crown relations, conflict-resolution and intercultural competency.]

20200528_171147_hdrLooking for a good read this summer, during COVID times?  One of my favourite books of the year is Wendy Wickwire’s book,  At the Bridge: James Teit and an Anthropology of Belonging (UBC Press, 2019).

Now, you may be thinking “I don’t know who James Teit is”, or “Anthropology isn’t really my thing.”   I would encourage you to push past those responses, and say that if you give this book a try, you will come away being so happy to have built a relationship with James Teit, and I suspect you may also come away feeling connected in a more intimate way to the places you live (where ever those places are) and feeling more  hopeful about the ways we all may choose, in these difficult times, to become anthropologists of belonging.  In concrete terms, here is what it says on the back cover of the book:

Every once in a while, an important historical figure makes an appearance, makes a difference, and then disappears from the public record.  James Teit (1864-1922) was such a figure.  A prolific ethnographer and tireless Indian rights activist, Teit spent four decades helping British Columbia’s Indigenous people in their challenge of he settler-colonial assault on their lives and territories.  At the Bridge chronicles Teits’s fascinating story:  From this base at Spences Bridge, BC, Teit practised a participant-based anthropology that covered much of BC and northern Washington, Oregon, Idaho, and Montana. Whereas his contemporaries, including famed anthropologist Franz Boas, studied Indigenous peoples as the last survivors of “dying cultures” in need of preservation in metropolitan museums, Teit worked with them as members of living cultures actively asserting jurisdiction over their lives and lands.  At the Bridge lifts this story from obscurity.

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It bugs me knowing Boas published this photo of Teit and Ankto photo without identifying them.

I was excited when this book came out, in part because I had already encountered Teit.  Or at least, I knew his name.  For several years, I had been part of a partnership between ILRU (the Indigenous Law Research Unit at UVic) and the SNTC (The Shuswap Nation Tribal Council) working on a number of the Secwépemc Law projects. In these projects, we were asked to work with a number of Secwépemc storied legal resources, and to draw on a number of those gathered by James Teit at the turn of the last century (You can see a copy of the Lands and Resources Law Research Project here).  All this to say, I knew that his name was on the monograph from which we drew these resources.  But I knew next to nothing about Teit himself.

And now, I love him.   Seriously.  And I love thinking about his Nlaka’pamux wife Antko, and the place of women in this important story.  And I love the book.   You know I love a book if I lay traces of my pens and highlighters so thickly across the paper.  20200528_171439_hdrMy copy of the book pretty much looks like this…..  I couldn’t help myself!  (sorry to you librarian folk out there who try to maintain book purity). But the text simply drew me into engagement, and there were just so many things i wanted to be able to return to. While my kids (nearly adult man-cubs?) have not yet ‘read’ the book (physically run their eyes over the pages), they both have a good sense of what is there:  while I was reading, I was constantly stopping to interrupt them in their other endeavours, so I could read them different sections from the book.

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A treat to see pages from his field notes, always identifying specific storytellers, weavers, hunters…

It is just chock-a-block full histories that need knowing.   And it is written in such an accessible style, whether one is a theorist, a historian, a  teenager, a community member, a health care worker, an environmentalist, a linguist, a knitter, a basket maker.  Beautifully thoughtful and inviting.

I also think it should be mandatory reading for anyone teaching in a law school (OK.  Not that I would “mandate” anything, but I think people would WANT to have access to this one).

The day I finished my first read through of this book, I sent the following note out to my law school colleagues, detailing all the reasons I think this book should be on all our shelves, and should be drawn into our teaching, our research, and our practices of engaging in the socio-political world around us.  I still stand by that analysis.

Hi all:

I have been reading my way through Wendy Wickwire’s new book At the Bridge: An Anthropology of Belonging, and wanted to put the word out that I think this book might be the “must read” book of the year.  I have been thinking about how it is a game changer in a number of areas:

1. People teaching in BC law schools – I feel like the historical pieces of BC finally started settling into place with this book
2.  People teaching constitutional law – wow to the ability of this book to get at both confederation questions and federalism ones
3.  People thinking about reconciliation stuff — the story of James Teit is so absolutely inspiring in terms of seeing indigenous/settler collaborations and working relationships
4.  People working on any of the transsystemmic questions — this book gets at the legal orders in the BC interior
5.  People thinking about the history of Victoria and Vancouver Island — I just think this book should be taught in all the high schools here too.
6.  People looking for models and pathways for how we begin to have more complex engagements of law at the current juncture.
7.  People cautious about the place of anthropology in our legal work — this book makes visible multiple ways of doing anthropology, and provides tools for distinguishing the kinds of approaches that are more and less helpful/valuable (indeed, left me feeling rather inspired about the possibilities of acting otherwise)
Anyways…. I think it would be a great choice for a faculty “book club” read.   This will be an amazing resource for us here in the law school, and I am really keen on having others to talk to about the book (and ways to think about drawing this book into our resources in both first year and upper year courses)

Wendy Wickwire’s At the Bridge is one of those books that has shifted my sense of history, and my sense of what is possible when it comes to walking the path of respectful relations, and taking seriously the hopeful potential in decolonizing actions.  What James Teit did (as a settler to Canada) is possible for all of us to do.  He offers us a pathway.  It is ours to walk.

Truth and Reconciliation – A Place to Start

[Note from Gillian Calder and Rebecca Johnson:  We came across this lovely TRC Action Plan, produced by Sarah Robinson, a former law student.  It left us thinking about all the different ways people might not only think about their own TRC learning plans, but also about the ways such plans might be helpful with people in their classrooms, families, or communities.  We asked her if it could be shared here as a resource, and invited her to reflect on her own experiences of the ways people at different stages of their own work might begin to think about their own learning journeys]

Truth and Reconciliation – A Place to Start

Sarah Robinson

Rainwatch_T&R_PersonalActionPlan_Screenshot
TRC Action Plan, page 1

Many Canadians – including those working in legal and justice systems –  find truth and reconciliation efforts overwhelming, and often express that they don’t know where to start.

If you feel that way, know that you’re not alone.  Many online resources exist to help build understanding about Indigenous perspectives, including a free Truth and Reconciliation Personal Action Plan [link to: http://rainwatch.ca/tr-personal-action-plan] to help you get started.

Hundreds of Indigenous cultures exist in the lands now known as Canada. Many continue to operate under complex legal systems that have existed for millennia, and all have been impacted by the recent introduction of Canadian law.

Aaron Paquette, an Indigenous[i] artist and politician, once remarked that

If you’re born Indigenous, you’re born political. From birth, the government is intensely interested in who you are [and] where you live… Indigenous lives are the most legislated lives in Canada.[ii]

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TRC Action Plan, page 2

To understand what this means, we must examine the dominant legal system that now operates in the territories now known as Canada. Interrogating this legal system exposes its Euro-Christian foundations and brings its histories into the realm of light and truth. Seeking truth is a necessary component of each Canadian’s responsibility to reconciliation.[iii]

Generally, a legal system is a mirror of the society in which it develops, and of the people who hold power in that society. Western legal systems – including contemporary Canadian and provincial legal regimes – are built upon Euro-Christian worldviews, beliefs, and values, such as patriarchy, private property, wealth accumulation, individual rights, and elections-based governments. These approaches sit in contrast to many Indigenous worldviews, beliefs, and values, such as matriarchy, communal use of places, wealth distribution, collective rights, and accountability-based governments. None of these systems are perfect. All cultures and legal systems offer successes, challenges, and room for improvement.

However, it is vital to appreciate that all legal systems uphold and replicate – both visibly and invisibly – particular worldviews, beliefs, and values.

When settlers first arrived, they may have imported Euro-Christian values with them but they relied heavily on Indigenous allies and knowledge in order to survive. Many Indigenous communities recount oral histories about their first interactions, in which the newcomers were often lost, hungry, and in need of help. The newcomers brought new diseases to this continent and epidemics quickly swept through Indigenous communities, decimating some populations by up to 90%.[iv] Simultaneously, thousands of settlers continued arriving to “the colonies,” their occupation made easier as railways and other forms of transportation improved. By the time colonial leaders began drafting legislation about Indigenous peoples, settlers physically outnumbered Indigenous peoples. Due in part to this, the colonial legal system eventually took hold as the dominant legal system in the developing geopolitical country of Canada.

In 1850, colonial legislation established a legal distinction between Indigenous peoples and settlers by defining – from the colonial government’s perspective – who is an “Indian.”[v] Subsequent legislation clarified that a “person” was an “individual other than an Indian.”[vi] In 1869, the colonial government implemented a patriarchal approach to Indian Status and identity control, which erased the legally-recognized Indigenous identities of innumerable Indigenous women and children. (In fact, Bonita Lawrence estimates this figure to be in the millions[vii]). Over time, Canadian legislation effectively dispossessed these millions of Indigenous individuals from their territories, thereby opening up the land for settlement. This oppressive legislative approach was finally revised in 1985, but the damage done by this 116-year regime remains widespread.

To reiterate: from 1869-1985 Indian Status had nothing to do with Indigenous ancestry. (For an excellent overview, see Val Napoleon’s work[viii]). Indian Status was established to legally create, erase, and control Indigenous identities and bodies by regulating who can do what and where. The Pass System is a disturbing example.[ix] From the 1880s until the 1930s, Status Indians were supposed to seek a written pass from their local Indian Agent before leaving their reserve. This allowed Indian Agents to monitor and control Indigenous people’s movement. There was no legislative basis for this approach. Instead, rations and other “privileges” were withheld from those who did not comply, although the most effective compliance approach was to have the police arrest those found off-reserve without a pass.[x] In 1902, a commission from South Africa visited Canada to study its Pass System as a method of social control,[xi] and passes later became a cornerstone of South African apartheid.

It is curious that Canadian legislation about Indigenous peoples presents a paradox of “protective assimilation,” [xii] in that it acknowledges Indigenous peoples’ unique rights while concurrently placing strict restraint on Indigenous identities, and therefore Indigenous bodies.

In 2015, the Truth and Reconciliation Commission (TRC) of Canada released 94 Calls to Action, [link to: http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf] which place responsibility on the shoulders of each Canadian to learn about and unpack these histories. Of particular significance are Calls to Action 25-42, which are directed at those working in legal and justice systems.

There is no time like the present to begin righting the wrongs of the past. As the TRC Final Report encourages, “the country has a rare second chance” to pursue truth and reconciliation.[xiii] Download your free Truth and Reconciliation Personal Action Plan [link to: http://rainwatch.ca/tr-personal-action-plan] to get started, and be part of the change.

FOOTNOTES:

[i] Although this blog post frequently uses the word Indigenous (which signals Inuit, First Nations, and Métis peoples), its content speaks to legislation that was somewhat targeted to First Nations. However, all Indigenous peoples are impacted by colonial legal systems that interfere with Indigenous experiences, including defining and categorizing different types of Indigenous identities in the first place.

[ii] CBC. I Am Indigenous. https://www.cbc.ca/news2/interactives/i-am-indigenous-2017/paquette.html.

[iii] As the Truth and Reconciliation Commission (TRC) Final Report stated, “reconciliation is not an Aboriginal problem; it is a Canadian one.” TRC Summary Report, vi. http://www.trc.ca/assets/pdf/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf.

[iv] I am married into the Toquaht Nation, one of the Nuu-chah-nulth Nations on the west-coast of what is now called Vancouver Island. Toquaht was once a Nation of thousands. After disease epidemics passed through, around 30 remained.

[v] An Act for the better protection of the Lands and Property of the Indians in Lower Canada. August 10, 1850. https://bnald.lib.unb.ca/sites/default/files/UnC_1850_cap%2042_edited.pdf.

[vi] The Indian Act, 1876. https://www.aadnc-aandc.gc.ca/eng/1100100010252/1100100010254.

[vii] Bonita Lawrence. “Real” Indians and Others: Mixed Blood Urban Native Peoples and Indigenous Nationhood (UBC Press: 2004), 56. Check this book out for a brilliant and comprehensive analysis of the impact that Indian Status has had on Indigenous women, children, Nations, territories, and identities.

[viii] Val Napoleon. “Extinction by Number: Colonialism Made Easy.” Canadian Journal of Law & Society (2001)16, 117.

[ix] A documentary about the Pass System is available at: http://thepasssystem.ca/.

[x] John Giokas. “The Indian Act: Evolution, Overview and Options for Amendment and Transition” (March 22, 1995), 45. http://publications.gc.ca/collections/collection_2016/bcp-pco/Z1-1991-1-41-130-eng.pdf.

[xi] F. Laurie Barron. “The Indian Pass System in the Canadian West, 1882-1935.”

https://www.saskarchives.com/sites/default/files/barron_indianpasssystem_prairieforum_vol13_no1_pp25ff.pdf.

[xii] For an interesting overview of the “protective assimilation” paradox and its presence in colonial policies about Indigenous peoples, see: John Giokas. “The Indian Act: Evolution, Overview and Options for Amendment and Transition” (March 22, 1995), 2. http://publications.gc.ca/collections/collection_2016/bcp-pco/Z1-1991-1-41-130-eng.pdf

[xiii] TRC Summary Report, 7. http://www.trc.ca/assets/pdf/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf.

 

Ceremony as Remedy? A Heiltsuk resource for doing TRC#28 work in the law school.

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Bella Bella Big House – Photo credit Charity Gladstone/Canadian Press

In the fall of 2019, the news carried the story of an Indigenous man and his granddaughter who were detained and handcuffed in the context of trying to open a bank account at a branch of the Bank of Montreal in Vancouver.  In short, a bank teller had ‘become suspicious’ that fraud was involved, and the RCMP were called. The pair were detained and handcuffed in front of the bank. The RCMP determined within the hour that there was no criminal activity, and the bank later agreed that it had been a mistake to call the police. Here is a link to Angela Sterritt’s report on what happened to the grandfather and granddaughter, both Heiltsuk from the community of Bella Bella.

https://www.cbc.ca/news/canada/british-columbia/indigenous-girl-grandfather-handcuffed-bank-1.5419519

There was significant national and international media swirl around the case.  Angela Sterritt played an important part in keeping the issue prominent, and with a lens that focused on the Indigenous experience of commercial racism.

What is exciting here is seeing what the Heiltsuk actually DID in response to the injury that had been caused to their members — they held a “Washing Ceremony”.  Here is  Rafferty Baker’s report for CBC.  https://www.cbc.ca/news/canada/british-columbia/bmo-heiltsuk-bella-bella-ceremony-1.5483320

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Maxwell Johnson said being in the community’s big house brings him a solace that the incident at BMO disrupted. (Angela Sterritt)

What the Heiltsuk have done in this case is to take action on the basis of Heiltsuk law. I do not know very much about the Heiltsuk washing ceremony, and I suspect that few of us teaching in law schools do, but the Heiltsuk conducted the ceremony in a way that can help non-Heiltsuk begin learning about their obligations and responsibilities under Heiltsuk law, as well as about Heiltsuk ways of addressing harms and injuries.

Angela Sterritt was invited to participate as a witness to the ceremony, and the community agreed that media could be part of this conversation.  Thus, these reports provides a lens for learning about (and teaching about) this work.  Here is her CBC report,”Indigenous Ceremony tries to right wrong caused by handcuffing of grandfather and granddaughter. (https://www.cbc.ca/news/canada/british-columbia/reporter-s-notebook-grandfather-handcuffed-bank-1.5484448

There is also a twitter feed that fleshes out this experience. https://twitter.com/AngelaSterritt/status/1235040345722720257

HOW MIGHT THIS BE DRAWN INTO THE CLASSROOM?

For people thinking about how they might respond to the TRC Calls to Action in their own classrooms, this case provides many powerful lessons, and directions for engagement.  It could also be draw into a number of different classroom contexts.

  • One might think of this case through a criminal law lens. The story offers space for looking at the law around detention, reasonable grounds/reasonable suspicion. It also asks about the place of private citizens (or corporations) in ‘policing’ the spaces of commerce and economy. There is lots here that raises questions about what racial profiling looks like when it is performed by private rather than public actors.
  • One might also think of this case through a tort law lens. Again, what does ‘wrongful arrest’ look like in the tort context? What duty of care do banks owe to customers? And what precisely is the harm? What kind of damages would repair the injury done? And who precisely is responsible for the injury: the bank teller? the police officers? the bank manager? the board of directors?
  • The question of WHO is responsible for the harm also raises the kinds of questions that come up in the context of not only corporate crime, but also corporate torts. That is, there are questions raised here about institutional actors (corporations). What theories of liability and responsibility are most appropriate when intention and action are differentially distributed through a corporate structure.  There is much in this case that can provide background for addressing Call to Action #92.
  • And of course, WHOSE LAW applies to injuries such as these? This is a particularly live question in BC where questions about unceded territory, and the limits of state sovereignty continue to take centre ground.  [NOTE: a super helpful resource on Sovereignty in BC is Claxton, Nicholas XEMTOLTW, and John Price. “Whose Land Is It? Rethinking Sovereignty in British Columbia.” BC Studies 204 (2019-2020): 125-48.  I would HIGHLY recommend putting this on your summer reading list or in your curriculum for the students].

 

In both the Sterritt and Rafferty accounts of the ceremony, there are some spaces for opening the conversation. Things to note:

  • The harm to Maxwell Johnson and his granddaughter is identified as having both individual and collective elements: There was an injury not only to the two of them, but to the community as a whole.
  • The community as a whole stepped in to focus on repairing the harm to the grandfather and granddaughter. The ceremony enabled a public acknowledgement and witnessing of the harm, and an opportunity for him to speak about that harm to those representing the bank.
  • 15 representatives from the bank were present. Their job was to hear the expression of hurt and anger.  They were not (like other witnesses) given a space to speak. There is something interesting and important here in thinking about the role of taking public responsibility (at least of thinking about the different ways that acknowledgement might work). Also something important about the place of listening without responding.
  • Witnesses were called, so there is a public memory of the event, and of the removal of shame from the grandfather and granddaughter.  Witnesses play an important role in keeping the memory of the ceremony alive. The focus here, even if involving representatives of the Bank of Montreal, is on the Heiltsuk taking action to relieve the harm caused by others (my point is that the job of repairing and restoring is carried not only by the ‘person who did the harm’, but also of the full community in which the member is embedded).  The work of healing from the injury is not confined to the person who did the injury.
  • The ceremony seemed designed not with the primary goal of ‘punishing’ the bank, but with the goal of healing and repair.   It presumes that a piece of this means attending to the work of ongoing relationships (ie. many people will still have their money in the bank…so what is needed to repair trust?).  This ceremony does not wash the stain off the bank members (as far as I can tell).  It is focused on repair.  But at the same time, it makes a space for the bank to participate in doing their own acts of restoration, rehabilitation, acknowledgement and repair.   Part of the remedy seems to involve drawing them closer into relationship rather than just pushing them away. The representatives of the Bank were gifted, blanketed, and given a role in the ceremony. The remedy, in effect, is one which helps those responsible for the injury to learn more about both the Heiltsuk, about the impact of the injury, and about what it might mean to repair an injury in ways that go beyond apology or monetary compensation (particularly if one asks also about the harm to the community)
  • Note that, in attending the ceremony, the Bank of Montreal was in a sense acceding to Heiltsuk law.   Maybe ‘acceding’ is too strong a word, but at the very least, they came to the Ceremony without being ‘required to’ by a court action, or contract.  Rather, they took their lead from the Heiltsuk, and agreed to come and occupy a role in ceremony designed to heal the injury done.  One might imagine conflicts over what reconciliation is or isn’t, but one can see in this decision an action that affirms the legitimacy of a Heiltsuk response.
  • the Washing Ceremony was conducted in the Big House. The Bella Bella Big house was newly reconstructed (after 120 years). The Big House is the venue for important public ceremonial and spiritual business. https://www.cbc.ca/news/canada/british-columbia/heiltsuk-big-house-ceremony-   It is significant and moving to see the new space (“a living space”) being put into action right away.

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Representatives from the Bank of Montreal take part in a washing ceremony in Bella Bella. They were invited there by the Heiltsuk Nation in an effort to repair the damage done when two members of the Heiltsuk community were arrested at a Vancouver BMO branch in December. (Shawn Foss/CBC)

This is an important case to think with and through.  It is one for conversation in the law schools, both between us as colleagues and with our students.   There are undoubtedly a number of other resources that could help us begin to think about this case as a helpful resources for responding to the TRC calls in our classrooms.  If this is a case you have been thinking about too, please feel free to add more links into the comments.   This is a story worth learning from!

 

Of expertise, ‘activism’, and substantive equality for Indigenous Canadians

Introduction

This is a case note about R v Heimbecker, 2019 SKQB 204 and a meditation on some mechanisms by which colonial courts fail to accord substantive equality to Indigenous people within Canadian legal processes.

In Heimbecker, a Saskatchewan judge declined to allow Senator Kim Pate to testify as an expert witness in relation to the proper sentencing of a young Indigenous woman. Although the Crown consented to much of Senator Pate’s evidence, the judge excluded her evidence entirely because:

[45]                                 I have grave concerns about the Senator’s ability to fulfill her duty to the court as an independent and impartial witness in light of her three and a half decade old advocacy role. In coming to this conclusion I must make clear that I am in no way casting aspersions upon Senator Pate or suggesting that she would intentionally give evidence in such a way as to sway the court in a particular direction vis-à-vis Ms. Heimbecker.

[46]                                 However, I am not persuaded that Senator Pate can so easily shed the cloak of advocate or the mantle of activist. And, at the end of the day, this court cannot be a platform for Senator Pate’s social advocacy.

The case, and the expert evidence

Ms Heimbecker is an Indigenous woman who had pleaded guilty to, and was due to be sentenced for, two counts of possessing cocaine for the purposes of trafficking.

Senator Pate’s evidence was offered alongside a Gladue report, character evidence, and a pre-sentence report. The topics on which her evidence was offered were listed in the judgment as follows:

(i) the impacts of incarceration on young people and, in particular, on young Indigenous women;

(ii) declassification delays systemic within the [Corrections Service] which results in an automatic maximum-security classification for female Indigenous offenders, which delays access to programming and delays their access to potential early release in accordance with the statutory eligibility dates for day parole or full parole;

(iii) the lack of access to rehabilitation programming and healing lodges due to the classification delays and limited resources;

(iv) the consequences of overcrowding in prisons for women;

(v) the costs to the Canadian taxpayer of prison versus costs associated with a non-custodial/community-based disposition; and

(vi) how the prison system does not meet the sentencing principle of denunciation or deterrence as research and study, including research by the Department of Justice Canada, has demonstrated that incarceration does not serve as a deterrent, including for young Indigenous women.

The Crown objected to Senator Pate’s evidence on point (vi), arguing that this is a question of law and not a matter for evidence. However, it consented to the evidence being offered on the remaining topics.

The admissibility judgment

Justice MacMillan-Brown adopted an active conception of her ‘gatekeeper’ role as trial judge, observing that ‘I would be shirking my duty as gatekeeper of the evidence if I qualify Senator Pate as an expert simply because of a lack of objection by the Crown.’

The judge relied largely on the Supreme Court of Canada’s decisions in R v Mohan, [1994] 2 SCR 9, White Burgess Langille Inman v Abbott & Haliburton, 2015 SCC 23 and R v Bingley, 2017 SCC 12. Quoting from each of these decisions, MacMillan-Brown J found that Senator Pate met the ‘modest threshold’ for independence and impartiality set out in White Burgess and therefore proceeded to the second stage of the admissibility test set out by Cromwell J for the SCC in that case. However, she concluded that Senator Pate’s evidence was inadmissible in its entirety at the second, ‘gatekeeping’ stage.

Justice MacMillan-Brown focused her concerns regarding Senator Pate’s independence and impartiality on Senator Pate’s occasional use of the term ‘activist’ or ‘advocate’ to describe her work with criminalized women. So, for example:

Does an “activist” or an “advocate” have a role as an expert witness for the court – regardless of her impressive background and expertise?  The answer, I find, is no.  [para 42]

I am not persuaded that Senator Pate can so easily shed the cloak of advocate or the mantle of activist. And, at the end of the day, this court cannot be a platform for Senator Pate’s social advocacy. [para 46]

The judgment gives rise to two important questions, both of which shed light upon the limits of the legal system’s capacity to respond to TRC calls to action 30 – 32 and MMIWG calls to justice 5.11 – 5.17 and 14.3:

  1. did the trial judge apply the admissibility test correctly in this instance?
  2. how do implicit beliefs about legal impartiality and political activism operate to shield the legal system from grappling with the colonial harms of the legal system?

Was the trial judge correct?

The leading decisions on the independence of expert witnesses are White Burgess and Mouvement laïque québécois v. Saguenay, 2015 SCC 16. In White Burgess, the SCC allowed the admission of expert evidence from an accountant who was a partner at a firm that had a financial and reputational interest in the outcome of the case. Justice Cromwell stated that the relevant question is whether there is evidence to suggest that an expert witness is actually biased, or actually lacking in impartiality (see e.g. para 50 and 57). To exclude on this basis, the judge must identify evidence that the proposed expert witness is in fact biased or lacking impartiality in her work in the case, or acting as an advocate for a party. Where the witness indicates that she is aware of her duty of independence and intends to comply  with that duty, and the evidence otherwise suggests that she understands and able to discharge that duty, it is an error to exclude on the basis of a lack of independence.

MLQ v Saguenay was not cited in Heimbecker. It is a pity that MacMillan-Brown J did not turn to this decision, as it would likely have provided clarity. In that case, MLQ challenged a practice adopted by the City of Saguenay of beginning its City council meetings with a prayer. The basis of the challenge was that this practice offended against the principle of religious neutrality and infringed religious freedom. The case was first brought in the Quebec Human Rights Tribunal by MLQ and a named plaintiff. MLQ is a non-profit organization that ‘advocates the complete secularization of the state in Quebec’. Most of its activities relate to the state use of Christian religious practices and symbols.  In this case, the Tribunal held that the practice of starting meetings with the prayer infringed the religious freedom of the named plaintiff, who was an atheist.

Saguenay appealed from the Tribunal’s decision on several bases, including the Tribunal’s reliance upon expert evidence given by Mr Daniel Baril. Mr Baril’s qualifications are not described in detail in the decision, but the judgment notes that he was a co-founder and member of MLQ and had previously taken public ‘stands’ on the issues being considered in this trial (here is a recent example of an op-ed by him). The Quebec Court of Appeal held that the Tribunal had erred by relying on Mr Baril’s evidence in preference to that offered by two experts called by Saguenay. Specifically, Mr Baril’s independence was called into question because he is ‘an advocate for secularization of the state’ (SCC decision, at para 104).

The SCC unanimously disagreed with the Quebec Court of Appeal’s characterization of the duty of independence. The Court held that assessing whether an expert is able to discharge the duty of independence ‘requires consideration of, inter alia, the substance of the expert’s opinion.’ (at para 106) For present purposes, the key passage of the SCC’s decision is as follows:

the entire discussion on Mr. Baril’s opinion with respect to state secularism, which the Court of Appeal stressed in its reasons, actually missed the point. The expert evidence of Mr. Baril and of the respondents’ witnesses was relevant only to the determination of whether the prayer at issue was religious in nature. And that is exactly what the Tribunal used it for. Mr. Baril’s opinion regarding the role of the state in religious matters goes to the definition of the state’s duty of neutrality. That is a question of law that is within the jurisdiction of the courts. It is distinct from the expert’s views on the religious nature and discriminatory effect of the prayer.

In short, by focusing on Mr Baril’s work as an advocate for secularism and his role at the MLQ, the Quebec Court of Appeal had misunderstood the nature of Mr Baril’s work as an expert in this case.

With respect to MacMillan-Brown J, I believe that she has made a similar error in Heimbecker.  Justice MacMillan-Brown appears to have focused largely, if not entirely, on Senator Pate’s occasional use of the word ‘activist’ or ‘advocate’ to describe aspects of her work  in her former roles. (Prior to her appointment to Senate, Senator Pate was Executive Director of the Canadian Association of Elizabeth Fry Societies and holder of the Sallows Chair in Human Rights at the University of Saskatchewan.) The judgment does not engage with the substance of Senator Pate’s proposed testimony or with the foundation for that testimony. As a reminder, the topics on which Senator Pate’s evidence was offered included the impacts of incarceration on young Indigenous women, resources available within the corrections system to Indigenous women, and evidence about the (in)effectiveness of incarceration as a means of deterrence. These matters are relevant to the determination of a fit sentence for Ms Heimbecker; and they are the kind of questions that can be rigorously studied using appropriate research methods. By virtue of her lifelong work, Senator Pate is distinctively – perhaps uniquely – placed to assist the court to understand the Canadian research on these matters.

Information very similar to that which was offered by Senator Pate in this case was foundational to the Supreme Court of Canada’s decisions in R v Gladue, [1999] 1 SCR 668 and R v Ipeelee, 2012 SCC 13. In those decisions, the work of Professor Michael Jackson was cited to ground the SCC’s expressed concerns about the over-incarceration of Indigenous people in Canada and the Court’s interpretation of s. 718.2(e) of the Criminal Code. Like Senator Pate, Professor Jackson describes himself as an advocate.  Like Senator Pate, Professor Jackson has a long and honourable history of activism with respect to the harms inflicted by the colonial legal system on Indigenous Canadians.

The rule of law, substantive equality, and what the legal system ‘knows’

‘Rule of law’ is a phrase that is presently being wielded by settler governments against Indigenous Canadians and their allies. In the context of the Wet’suwet’en hereditary chiefs’ opposition to the route proposed for a pipeline through Wet’suwet’en territories and Indigenous and settler engagement in civil disobedience to protest the State’s handling of this dispute, settler politicians and courts alike are repeating a mantra that positions the colonial state legal order as the sole and proper arbiter of right and wrong on questions of justice for Indigenous people. Never mind that Canada and BC have had twenty three years to act on the SCC’s direction in Delgamuukw v BC, [1997] 3 SCR 1010 to negotiate in good faith with Wet’suwet’en hereditary chiefs to resolve their land title claims:

By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts.  As was said in Sparrow, …, s. 35(1) “provides a solid constitutional base upon which subsequent negotiations can take place”.  …  Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. (para 186)

In a speech she gave to the House of Commons Justice Committee in the wake of the Cabinet ‘shuffle’ that removed her as Minister of Justice and Attorney-General of Canada, the Honourable Jody Wilson-Raybould, Puglaas, observed:

[M]y understanding of the rule of law has also been shaped by my experience as an Indigenous person and leader. The history of Crown-Indigenous relations in this country, includes a history of the rule of law not being respected. Indeed, one of the main reasons for the urgent need for justice and reconciliation today is that in the history of our country we have not always upheld foundational values such as the rule of law in our relations with Indigenous peoples. And I have seen the negative impacts for freedom, equality, and a just society this can have firsthand.

In my own research, I have observed the truth of Puglaas’ observation. Canadian law and legal actors have a dismaying tendency to forget or overlook core tenets of Canadian state law when the rights and interests of Indigenous Canadians are engaged. For example:

  • The Crown, defence and trial judge in R v Barton, 2019 SCC 33  failed to accord Cindy Gladue (the Cree/Métis victim in that case) the procedural protections granted by s. 276 of the Criminal Code. Throughout the trial, Gladue was subjected to racialised and gendered stereotypes about Indigenous women who exchange sexual activities for payment. Gladue’s dignity and humanity were thoroughly disrespected during Barton’s murder trial, to the extent that a portion of her body was actually entered as evidence. Because of Canadian principles of standing in criminal cases, Gladue and her family were never legally represented in the process of determining whether her rights had been breached.
  • A botched crime scene investigation, coupled with racism towards Indigenous eyewitnesses, contributed to the circumstances in which a jury acquitted Saskatchewan farmer Gerald Stanley of all charges after he killed Cree man Colten Boushie by shooting. (See the forthcoming special issue in the Canadian Bar Review for more about this case.) Both the crime scene investigation and the Crown’s approach to the credibility of the Indigenous eyewitnesses were starkly at odds with the standards that Canadians would expect in a case where a victim was shot in the head with a semi-automatic handgun. The poor quality of the police investigation hamstrung the Crown, depriving them of the opportunity to properly assess Stanley’s defence of accidental hangfire. For more on the impacts of this case on Cree people in Saskatchewan, and Colten Boushie’s family’s reaction to the case, see Tasha Hubbard’s wonderful film nîpawistamâsowin.
  • In the case of R v Lance Blanchard, 2016 ABQB 1323, woman who is publicly known by the pseudonym Angela Cardinal was arrested and held in remand. She was the complainant in this case and not the accused – but the Crown and preliminary hearing judge believed that she was at risk of failing to appear to testify. The trial judge who eventually heard this case described Ms Cardinal’s treatment as ‘appalling’. An independent review concluded that there was no legal basis for Cardinal’s arrest and that her treatment reflected a lack of cultural competence  on the part of the legal actors.

In her recent book Implicating the System, Elspeth Kaiser-Derrick explored the narratives used by Canadian judges when sentencing Indigenous women. She found that judges have difficulty understanding and applying the tenets of Gladue and Ipeelee, particularly with respect to the impacts of colonialism upon Indigenous women. She also found that Indigenous women’s criminal offending is deeply connected to their victimization, both personal and structural. In the 175 cases Kaiser-Derrick reviewed, she found many examples of cases in which judges sentenced Indigenous women to a term of incarceration for the stated purpose of giving them access to treatment and services in prison. Kaiser-Derrick’s finding makes Senator Pate’s proposed evidence in Heimbecker especially salient.

What does all of this have to do with Heimbecker? This pattern of cases suggests to me that the Canadian legal system may be particularly prone to ‘forgetting’ or mis-applying its own rules when those rules operate to protect or advance the rights and legal interests of Indigenous people. In the Heimbecker decision, the politically charged word ‘activist’ appears to have deflected the trial judge from a careful application of the relevant rules of evidence. In consequence, a young Indigenous woman will be sentenced on the basis of some contextual information – e.g. the Gladue report – but without the benefit of structural information that should as a matter of justice, bear upon the determination of a fit sentence in her case. As in Barton, Stanley and Blanchard, this deprivation of procedural rights and legal protections appears to operate in a manner that insulates the colonial legal system from hearing evidence about the extent to which that system inflicts harm on Indigenous people.

It is not my intention to suggest that the dynamics I have traced in this post are conscious or to suggest, for instance, that legal actors deliberately fail to accord legal protections to the Indigenous people with whom they are dealing. Rather, I believe that this tendency to overlook procedural protections reflects deep and long-held implicit beliefs about the legitimacy and universality of criminal legal processes, and the tendency to cast Indigenous challenges to State processes as political rather than legal. Colonial law’s procedural protections have been established on the basis of implicit norms that reflect the interests and rationality of a privileged group, largely white men, who historically held a monopoly on law making, policy decisions, and the legal profession. Generations of Indigenous, feminist and critical race scholars have traced the mechanisms by which claims for the extension of these protections to those who do not embody these norms have been delegitimized and sidelined. Even though many historically narrow rules have been broadened to reflect the Charter value of substantive equality, judges seem to have particular difficulty according the full value of these expanded rules.

Expert evidence is a crucial means by which information about the harms inflicted by colonial law on Indigenous people can enter the adversarial common law process. The Supreme Court of Canada’s caselaw indicates openness to hearing expert evidence that contests the taken-for-granted universality and neutrality of Canadian law. However, cases such as Heimbecker suggest that we have more work to do to educate judges about how to exercise their responsibilities as legal gatekeepers in a manner that accords substantive equality to Indigenous Canadians.

Meanwhile, while acknowledging the profound constraints imposed by legal aid, I hope that some consideration is given to appealing the admissibility decision in Heimbecker. That decision does seem to be out of step with Canadian legal principles.  If left uncorrected, it has the potential to undermine Indigenous Canadian’s capacity to put important evidence before colonial courts. Both statistics and lived experience indicate that much more fundamental change is needed to the colonial legal process of sentencing Indigenous people. But in the context of the present system, Heimbecker removes one of the few existing tools available to Indigenous Canadians in individual cases to educate colonial courts about the harms inflicted on Indigenous people by the colonial criminal legal system.

Note: on 1 March 2020 at 1:40pm BC Time, I edited this blog to remove two references to a mandatory minimum sentence. Although the decision itself is unclear, I understand that the offences to which Ms Heimbecker pleaded guilty do not carry a mandatory minimum. However, the standard tariff for these offences requires a jail term.

Teaching with Love: Inside and Outside the Law School Classroom

Author meets Readers: Law’s Indigenous Ethics[1]

Laws Indigenous Ethics

 

A question that I have been thinking about for a while is some version of “What role should love play in a legal education?”

The question is partly prompted by the work of bell hooks, when she argues — “When as teachers we teach with love, combining care, commitment, knowledge, responsibility, respect, and trust, we are often able to enter the classroom and go straight to the heart of the matter.  That means having the clarity to know what to do on any given day to create the best climate for learning.”[2]

It is also partly prompted by the work of Susan Bandes, and other scholars of Law and Emotions, who argues with her colleague Jeremy Blumenthal that “there is mounting evidence that emotion cannot be cordoned off from ethical and moral judgment without impairing both ethical judgment and well-being; such evidence has broad implications for the teaching and practice of law.”[3]

My recent thinking on love and legal education is also deepened by three Scottish colleagues who in the Fall of 2019 rode their bicycles between the six Scottish law schools, offering workshops on (amongst other things) the role art can play in critical feminist pedagogy, and in particular feminist judgment.  They argue, in the words of Patricia Williams, “It really is possible to see things – even the most concrete things – simultaneously yet differently.”[4]

Is bringing the body/art/emotion into the study and practice of law one means of bringing love into a legal education?

So, you will imagine my delight when I first picked up my colleague John Borrows’ book, Law’s Indigenous Ethics, and read these words: “Love is an important internal self-explanation for many public-spirited actions.  So, I ask the question again: Why are concepts of love absent in legal language and debate?”[5]

My contribution here today flows from a read of Chapter One[6] in conversation with Chapter Five[7] – what might happen in legal education, at this critical moment on the planet, if we took seriously love as necessary practice and reimagined the walls that silo us inside classrooms?

Chapter One looks carefully at love as a legal principle, one of the seven Grandmother/Grandfather laws, and its place in the language of rights and obligations throughout Canadian Law.  Chapter Five offers some on the ground storytelling of how to take a love as a legal principle out of the classroom and onto the land, figuratively and metaphorically.

I start my reflections by drawing on the techniques of “found poetry”; pulling insights from reading Gift One: Love in conversation with Gift Five: Wisdom.  I conclude by offering some thoughts on how to take up John’s challenges about love, law and pedagogy, for transformative teaching.

 

1.      Found Poetry[8]

 

Her voice was clear; its strength was unmistakeable.  She called to the ends of the earth and sky.
When you don’t know where to turn, open this bundle – the laws within will guide you, even if they don’t settle every question.
How is love relevant?  Why are concepts of love absent in legal language and debate?

Love should be perceptible; it should swell, expand and project itself into our relationships.
While some of this instruction can occur in the classroom, walls can hide important legal resources.
We must beware of the dangers of a single story.

Many laws flowing from our political processes are designed to enhance freedom, autonomy and choice.
Law is not just about force – it also requires our participation and agreement.
We must join our best legal insights to help one another avoid the misery, pain, and destruction all societies face when love fails to guide their actions.

The language of love can be dangerous and we must be exceedingly wary of its appearance.
Languages of love must be decolonized; appeals to love must always be contextual.
Air, fire, water, earth, plants, animals and fish.

We learn differently when we change the physical context; engaging all of our senses.
When students learn in an embodied way these lessons can be more deeply internalized.
Constitutions, statutes, regulations, by-laws, declarations, adjudicative judgments, songs, carvings, textiles, dances, wampum belts, scrolls, and petroglyphs.

Law is a human tool – a resource for reasoning and acting.
In contemporary Canada, political and legal language seems generally devoid of references to love.
We learn differently when we change the physical context; engaging all of our senses.

I found my source of strength.
Outside.
Beware the dangers of a single story.

 

2.     So…

 

It might seem obvious that when you teach courses, like I do, on Family Law and Queering Law, that love is something that needs to be addressed, if not integrally.  Love is love is love, they say.  But the question I am trying to answer is not just about language for talking about the physical dimensions of love, and it is not just for the “pink ghetto.”  The question I am trying to answer is as relevant to Constitutional Law, or Securities Law, for courses taught transsystemically, in the field and on the land, as online, or in clinics.  What is experiential learning?

At this moment, where it seems like we are living in a universe more prone to hate, than to love, this text gently demands that we stop and listen to the seven Grandmother/Grandfather teachings. It asks us to see how love inhabits our public spaces, informs s. 35 of the Constitution and is essential to readings of treaties and other texts.  It is also wary and critical of love’s place in political life.  Like law, love cannot be forced, its powers too are easily abused.[9]

Beware the dangers of a single story.[10]

What I take away from this book about legal ethics and the legal imaginary, is that love is complicated, but deeply woven into the fabric of law.  To not find a way to bring love into legal education is to miss offering students another lens of analysis, another way to read texts, another way to deepen their skills for how to work through and across trauma.  To enhance the ethical imaginations of our future ethical professionals.  Lots of work to do, though to see love as law.

At this moment when it seems that people are more likely to build walls to keep us out, this book deconstructs those walls, metaphorically and actually, to move students out of the classroom and onto the land, or into community, or into their bodies, or inside an idea.  It is thick with stories of how these 7 laws are in action at different law schools across the country, of how deep learning results from bodies engaging with law in unexpected ways and places. In field schools, in downtown Victoria, under bridges in Vancouver.[11]

John’s stories are of the relationship between law, land and learning; I aim to take up those challenges, playing with the notion of what it means to be outside.

By pushing, conceptually, what might happen if we are to weave thick notions of love into a legal education, John revisions what experiential education means.  And, in so doing, offers ways to respond to the TRC, to MMIWG, to #MeToo.  Drawing deeply on examples of placed-based teaching spaces hope is created for alternative notions of where learning happens.  More ways to think about moving students out of their heads and into their bodies to become the ethical professionals we believe they can be.

Found poetry, art bombs, finding Indigenous plants, image theatre, playreading, theatre of the oppressed, baking, dancing with dichotomies, mask and mural making, movies.[12]

I think the answer is: be brave, and things will happen.

When you don’t know where to turn, open this bundle – the laws within will guide you, even if they don’t settle every question.

 

[1]              This presentation was part of a panel dedicated to discussion of John Borrows’ most recent text, Law’s Indigenous Ethics (Toronto: University of Toronto Press, 2019).  Thank you to Freya Kodar for organizing, to my co-panellists, Pooja Parmar, Christine Sy, Jean-Paul Restoule and John Borrows, and to our audience for their rapt attention and feedback.

[2]              bell hooks, Teaching Community: A Pedagogy of Hope (London: Routledge, 2003) at 134.

[3]              Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law” (2012) 8 Annual Review of Law and Social Science 161-181 at 175.

[4]              See Sharon Cowan, Chloë Kennedy, Vanessa E. Munro, eds., Scottish Feminist Judgments: (Re)Creating Law from the Outside In (Hart Publishing, 2019) at 1, citing Patricia Williams, The Alchemy of Race and Rights ( Cambridge , MA , Harvard University Press , 1991) at 150.

[5]              Borrows, supra note 1 at 27.

[6]              Borrows, ibid., “Nitam-Miigiwewin: Zaagi’idiwin (Gift One: Love), Love: Law and Land in Canada’s Indigenous Constitution” at 24-49.

[7]              Borrows, ibid., “Naano-Miigiwewin: Nibwaakaawin (Gift Give: Wisdom), Wisdom: Outsider Education, Indigenous Law, and Land” at 149-175.

[8]              I have been inspired by the work of Kate Sutherland to bring poetry into the law school classroom.  This has included reading poetry, but also using creative writing techniques to inspire students to write poetry; drawing on resources from their legal training.  Found poetry is one of these techniques, essentially creating a poem by taking words, phrases or passages from other sources and reimagining them.  The poem that follows is comprised of words, phrases and passages from Law’s Indigenous Ethics.  For a discussion by Kate Sutherland of writing poetry in the law school classroom see: Kate Sutherland, “Law, Poetry, and Pedagogy: Reading and Writing Poems in the Law School Classroom” in Christina A. Corcos, ed., The Media Method: Teaching Law with Popular Culture (Durham: Carolina Academic Press, 2019) at 399-414.

[9]              Chapter One is a love story; including interrogation of how love informs Canadian common law and Canadian Constitutional Law and how it sits within the seven Grandfather/Grandmother teachings of the Anishinaabe.

[10]             Borrows, supra note 1 at 28.

[11]             Chapter Five is a curricular model; with stories of how land-based teachings have been employed at several law schools across Canada by Indigenous and non-Indigenous scholars including folk at the University of Victoria, the Peter A. Allard School of Law, and Osgoode Hall Law School, amongst many.

[12]             These are some examples of “outsider” pedagogies that I have tried to take up in my courses and seminars at UVicLaw.

Art, Law, and Community: Truth and Reconciliation through Art

By: Julie Tucker & Gemma Smyth

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 the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.[1]

83. We call upon the Canada Council for the Arts to establish, as a funding priority, a strategy for Indigenous and non-Indigenous artists to undertake collaborative projects and produce works that contribute to the reconciliation process.[2]

Photo credit Nadja Pelkey

How can community collaboration address the Truth and Reconciliation Commission’s 94 Calls to Action? How can we more meaningfully embody and integrate the 94 Calls to Action in a teaching/learning practice for art and law students alike? How can community be meaningfully incorporated through an embodied, community-engaged practice?

Through a partnership between the School of Creative Arts (SoCA), the Faculty of Law and the Arts Council Windsor Region (ACWR), artist/maker Barry Ace (Anishinaabe [Odawa])[3] was invited to participate in the inaugural Art + Law Residency. Ace developed an original work entitled, “As Long as the Sun Shines, The Grass Grows and the River Flows” that incorporated multidisciplinary understandings of the Truth and Reconciliation Commission’s Calls to Action. The Residency and exhibition commenced during the World Indigenous Law Conference at the University of Windsor. Organized by Professor Beverly Jacobs, the conference was a collaboration between settlers and Indigenous artists and lawyers, as well as university and community-based organizations.

Photo credit Gemma Smyth

Over the course of two weeks, Ace worked with dozens of participants to create a 54-panel work that allowed participants to write, “bead,” and thus take artistic responsibility for one of the TRC Calls to Action. Ace likened his work to a “contemporary wampum”, with each participant actively engaging in self-examination, discussion, and artistic practice around individual Calls to Action. Each small group session comprised a group of between 5 and 20 students, lawyers, community members and artists.

Picture3
Photo credit Nadja Pelkey

Ace contextualized the project by first orienting participants to his selected works touching on aspects of residential schools.

“Debwewin” (Anishnaabemowen for “truth telling”) includes tiny shoes woven and enmeshed in rope symbolizing lost Indigenous children and culture.

“Memory Landscape” evokes images of Ace’s adopted brother, and a photo montage maps the geography of a residential school attended by his great aunt.

Picture4
Photo credit Czarina Mendoza

Ace’s storytelling connects the painful memories of his family members to his art, revisiting photos and geographies that embody the residential school experience. There are inherent risks in undertaking a project that can trigger trauma in both the audience and maker. It was a significant risk in this particular project because of the small group work, discussion, and emotional engagement required. Ace explicitly addressed this risk with participants. His experience working in the community, his thoughtful and meticulous making, and his careful, individualized engagement with each participant navigated potential harm while leaving space for lingering, difficult questions.

Before beginning their work together, participants were required to relinquish their rights to the piece for $1.00 (a “loonie”) by signing a contract.

Excerpts of the contract read, “In consideration of the sum of One Dollar (1.00) and other good and valuable consideration the receipt of which is hereby acknowledged, I, _________, whose address is ______ release and discharge Barry Ace, his or her executors, administrators, successors and assigns from all actions, suits, debts… in respect of my participation in the creation of a work of art entitled ‘As Long as the Sun Shines, The Grass Grows and the River Flows’…”

The act of giving up one’s rights recalled the way contract law is used in modern and historical contexts to deprive people of their rights – often without knowing exactly what they are giving up. In this case, participants were required to sign this contract without fully knowing its outcome. In receiving a shiny new dollar, the exchange is reminiscent of the nominal amount of money that is issued on Treaty Days across Canada.

Because this exchange was a condition of participating in the project, it was particularly poignant for students required to be at the session as part of their class assignment. This work therefore referenced the complex relationship between Canada and Indigenous peoples which permitted a narrow range of options – acquiescence, assimilation or death.

Photo credit Gemma Smyth

After this exchange, participants then chose a Call to Action and wrote it in HB pencil on vellum paper. Vellum is translucent and allowed each participant’s unique handwriting to appear, even as it was rolled up and tied. Using the materials that Ace often favours, the participants then mixed floral and geometric beadwork with electronic pieces including capacitors and resistors, to bead floral designs onto 56 velvet surfaces. Ace describes his choice of materials as referencing the “cultural continuity, bridging the past with the present and the future, and as a demonstrable act of nationhood, resistance and modernity.”[4] Ace had pre-prepared the surfaces with the general pattern he wanted and affixed tobacco ties above the floral pattern.

Both Ace’s artwork and the residency respond to Call 83 and 28. Ace’s contemporary wampum belt engages traditional cultural beading practices but also modern electronic components, reflective of the materials of present day communication – the small bits, bytes and wires that make our devices work. Wampum is legal document beyond words and time. It is meant to last and to be remembered. Because of Ace’s understanding of material culture and experience working in community, he was able to teach and to share through his own process of making. Through his teaching and practice, participants were able to embody the Calls as artistic expression, personal commitment and lived experiences. “As Long as the Sun Shines, The Grass Grows and the River Flows” will be exhibited at galleries in Canada. Posted next to the work are the names of the participants, which for many was a meaningful, public connection and acknowledgment of their participation. Ace’s experience directed the collaboration successfully and his input will shape how the project moves forward.

In the following reflections, two of the organisers of this project – an Indigenous artist/ cultural worker and settler lawyer/professor – reflect on the partnership and its potential for future collaborations between lawyers and artists to bring deep interpretative, embodied and enacted meanings to the Calls to Action.

 Julie

My heritage is both settler and Lunaapeewi from the Munsee-Delaware First Nation. I am both an artist and cultural worker. Currently, I am the Director of the Arts Council Windsor and Region and a founding member of the Munsee-Delaware History and Language group, developing its first project through the recently defunded Indigenous Culture Fund courtesy of the Ford Government. This year is marked by the UN as the Year of Indigenous Languages.[5] Language embodies the culture, law and ways of being. This and other acts by both the Federal and Provincial governments are clear departures from the work of reconciliation. The CBC’s website “Beyond 94” tracks the progress of the 94 calls to action: 10 are completed, with 19 in progress, 33 proposed and 33 not started[6]. I have come to learn that we all hold the responsibility to ensure this work continues. In 2016, I was in attendance of a Night for Chanie on the 50th anniversary of his death, which honoured Chanie Wenjack and all former students of residential schools, organized by imagineNATIVE Film and Media Arts Festival. Significantly, Senator Murray Sinclair spoke during the event and issued a directive to the whole audience to answer one of the Calls to Action by whatever means available to them. I felt and continue to feel a deep responsibility to develop relevant and meaningful programming to all people from across Turtle Island who call this region home. My interests are in projects that are collaborative, interdisciplinary and opportunities for artists to be engaged in meaningful work.

The responsibility I feel is bred from the colonial structures of which I have learned, worked and have benefited from. David Garneau states:

The government apology and the work of the Truth and Reconciliation Commission are important, but the deeper work of conciliation will be among individuals who re-cognize themselves as also other than agents of the State. Settlers visiting these permanent sites of conciliation do so as individuals who are conscious that their institutions perpetrated systematic abuses designed to assimilate or destroy Aboriginal people so they could take their land[7].

Gemma asked me, “What is the significance of collaborating with the Law School and its faculty?” There are many things I would like to say here, but I think this collaboration is just one of many ways to tell the important stories that need to be told along with a way to support that telling. I don’t think institutions like universities are always aware how artists need to be supported in their work. As a cultural worker my role is to advocate for opportunities that benefit artists. I hope to offer an experience that is valuable to their practice.

Lastly, when I experienced Barry’s work, it allowed me to reflect on my Grandmother’s stories of Mount Elgin Residential school. I think there are many stories that need to be heard. And I know that one day you will know them because an Anishanaabe/Haudenosaunee /Lunaapeewi artist will have the opportunity and the means to tell you in the right way.

Gemma

As a second- and fourth-generation settler of German and Irish ancestry living on Anishnaabe territory, this collaboration brought renewed meaning and urgency to the Calls to Action, and clarified anew the complicated complicity of the law, legal education and myself in ongoing colonialism. By profession, I am an academic, lawyer and mediator. I am fortunate to learn from colleagues whose academic and lived experience challenge me to remain alert and conscious about the ongoing impacts of colonialism and my complicity in its ongoing metamorphosis. This project was inspired by the work of my colleague Professor Jeff Hewitt, whose academic work challenges lawyers to reconceive of art as law. I found this collaboration incredibly impactful and would encourage other law schools to reach out to their communities and art schools.[8]

For lawyers, intellectualization of pain is our stock-in-trade. This perhaps is the danger of simply reading the TRC Calls to Action without embodying or enacting them, or without engaging with the affective elements of cultural genocide. Ace’s work accessed these pedagogies. He personalized the TRC through his own stories; he crafted installations and images that made pain real in way that the common law avoids. Yet understanding this pain is key to effective legal representation. The participants engaged with one another in a collaborative, community-based learning environment which allowed for interdisciplinary discussions and uniquely co-created meanings.[9] In the session I participated in, for example, art students, practicing artists and an Indigenous community member created a mini-conversation group. Our discussion became intimate quickly as we discussed the TRC and our own experiences with Ace’s work. The beading practice allowed a shared experience of making/ creating. My own inefficiency and inelegance with beading was in sharp contrast with practicing artists whose beautiful beading was a healthy dose of professional humility. As we discussed the role of law and lawyers in the residential school settlement, we quickly came to the limits of law to address pain. For me, the practice de-emphasized over-intellectualization and encouraged embodied presence. During the final show launching Ace’s work, participants felt deeply invested in the work and had formed relationships both with one another and with the artist. Our fingerprints were literally imprinted onto the velvet and our handwriting was visible through the vellum. For me, Ace created community-through-truth-telling – offering painful imagery and narrative without emptiness, offering tangible connections between the past and present.

Acknowledgement

This project was possible because of the work (paid and unpaid) of a large group of people. Students in the School of Creative Arts (SoCA) were guardians and hosts in the gallery space. Rod Strickland and Lucy Howe were experts in organizing the project, supporting the creation and hanging of the work, hosting the Artist and solving the inevitable challenges that come with making. Vincent Georgie and Chris Waters were strong institutional supporters and embodied fruitful interdisciplinary co-existence. Jeffery Hewitt was the creative brain behind this initial idea, with co-generative effort with Julie and Gemma. SoCA technicians Nadja Pelkey, who took photos and prepared the space and Victor Romano who runs the SoCA Gallery, while Czarina Mendoza lent her photography skills to the project. Michelle Nahdee and Beverly Jacobs supported the project alongside the World Indigenous Law Conference. The work took place on the land of the Three Fires Confederacy, Anishinaabe territory.

[1] Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: National Centre for Truth and Reconciliation) at 28.

[2] Ibid at 83.

[3] Barry Ace, Barry Ace (website), online: <http://www.barryacearts.com/current-exhibitions/&gt;.

[4] Barry Ace, “Artist Statement”, Barry Ace (website), online: <http://www.barryacearts.com/artist-statement/&gt;.

[5] 2019 Indigenous Year of Indigenous Languages (website), online: <https://en.iyil2019.org/&gt;.

[6] “Beyond 94: Truth and Reconciliation in Canada”, (19 March 2018), CBC News, online: <https://newsinteractives.cbc.ca/longform-single/beyond-94?&cta=1&gt;.

[7] David Garneau, “Imaginary Spaces of Conciliation and Reconciliation” (2012) 46:2 West Coast Line 74 28 at 38.

[8] Indeed, at least one other law school has done meaningful work in this area. See Ruth Buchanan & Jeffery Hewitt, “Treaty Canoe”, (2019), Osgoode Digital Commons: Articles & Book Chapters, online: <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3610&context=scholarly_works>; Ruth Buchanan & Jeffery Hewitt, “Encountering Settler Colonialism Through Legal Objects: A Painted Drum And Handwritten Treaty From Manitoulin Island”, (2017), Osgoode Digital Commons: Articles & Book Chapters, online:  <https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://scholar.google.ca/&httpsredir=1&article=3668&context=scholarly_works>.

[9] See Sarah Buhler, Priscilla Settee & Nancy Van Styvendale, “’We Went In as Strangers, and Left as Friends’: Building Community in the Wahkohtowin Classroom” (2015) 1:2 Engaged Scholar J 96; Sarah Buhler, Priscilla Settee & Nancy Van Styvendale, “Teaching and Learning About Justice Through Wahkohtowin” (2014) 4 Annual Rev Interdisciplinary Justice & Research 182.