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

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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.

Wild Mushrooms or Wild Land: Do you have permission to pick wild food on “Crown” land?

How a mundane practice like mushroom picking can disregard or disrespect First Nations rights and title. And how education can help.

Earlier this summer, I stumbled onto a patch of resistance to reconciliation. My fellow settler neighbours did not agree that the “Crown” land behind their homes was the traditional, unceded territory of the Secwepemc Nation. My neighbours assumed that all non-reserve land had to belong to the government and therefore, what was on it, was theirs for the taking. This was despite a solid public school education on the history of how Canada was settled.

One of my takeaways from this interaction is that the education of First Nation issues needs to include discussions about how individual actions can respect First Nations rights and title. My neighbours knew the history of how Canada was settled and yet they assumed that all Crown land was Canada’s. This was despite recent new stories that the Supreme Court of Canada upheld a Specific Claims Tribunal decision that found that the Crown broke a treaty with the Secwepemc Nation and wrongfully took land from them (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4; see https://www.cbc.ca/news/politics/supreme-court-williams-lake-1.4516522). My neighbours and I live in a town that is literally on stolen land, and that big forests around us may be Crown land on paper but in actual fact it is the unceded traditional territory of the Secwepemc.

Not all places in Canada have the convenience of knowing whose land you live on and a Supreme Court case confirming that the land was wrongfully stolen. This information is accessible to everyone in my town and it made a splash in the news when the decision first came out. This information, coupled with the education that I assumed all my neighbours received about the historical injustice of colonialism, resulted in what I assumed was a common understanding that the land around them was belonging to the Secwepemc First Nation.

It was against this backdrop that we rolled into the early summer months, the first summer after the wildfires of 2017. For several months ahead of this summer, my husband Chief Russ Myers of the Yunesit’in band in Tsilhqot’in First Nation, had been working with his nation around setting up a permitting system for picking wild mushrooms in the Tsilhqot’in traditional territory (http://www.tsilhqotin.ca/Portals/0/PDFs/Press%20Releases/2018_05_18_MurshroomPermitPR.pdf).

The Tsilhqot’in knew that there would be many mushroom pickers coming into the area and that the Province of British Columbia would not regulate them. It was up to them to create a system to ensure that the mushrooms were picked in ecologically sustainable areas.

This system had already been announced when my neighbours made their own announcement on Facebook; these women had recently returned from the traditional territory of Secwepemc Nation and had picked basketfuls of wild mushrooms. They were happy to get some healthy, organic, (free) non-GMO food.

Their glee at picking wild foods was shocking to me. I sent them messages, asking if they secured permissions from the Secwepemc Nation. My fellow settler neighbours were either silently cold or hotly angered at these questions. One woman responded to my suggestion by posting her outrage on Facebook. My other neighbours chimed in. The 93 comment thread lay clear that many people believe that it was their right to pick wild mushrooms on “Crown” land.

When I saw this, I was reminded of a few paragraphs that the Chief Justice McLachlin wrote in the Supreme Court decision, Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257. I had been reading this decision earlier in the year, and paragraphs 114-115 always struck me as infuriating. In these paragraphs, Chief Justice McLachlin, speaking for the Court, assumes that all non-reserve and non-treaty land must belong to the Crown because to assume otherwise would leave “no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value.” This assumption overlooks the number of treaties that were made and broken by the Crown, such as in the Williams Lake case. It also overlooks the evidence that we have that many First Nations in Canada were “managing” the forests and lands without Crown approval or knowledge. These Nations did this because they had been doing it for hundreds of years prior to colonial settlement.

It’s a funny thing to see the Chief Justice and a disgruntled white lady on Facebook arrive at the same blind spot. Two people, with radically different knowledges of the law, First Nations and history, both arrive at the same, unsupportive, assumption: if I don’t know this is Native land, then it must be Crown land.

Most of the land that we have today emerged from the historic wrongs that we all learn about in school. In schools, students look at these wrongs and perhaps will look at the current legal and political systems designed to address these wrongs. I think that this leaves students with an idea of what governments or industry need to do, but it doesn’t give the students a sense of what they need to do as individuals to respect the First Nations whose land they live on. How to live ethically if the land that you live on is stolen?

To ask permissions from the First Nation to harvest wild food is a practice that is small but potentially impactful. How one asks for permission to harvest wild foods is a delicate act; it requires taking the time to learn whose land it belongs to, to reach out and contact that First Nation, to listen and really try to hear the response, which might be in a language which is not yours. This process may not be easy, and there probably is not a universal approach. But by even trying to do this, settlers are showing government and industry and all our neighbours whose land and laws we are choosing to follow. An education that connects historic wrongs with how individual actions can help reconcile the past is one way that we can get other settlers to begin this kind of practice.

After I had sent my neighbour the questions, the Secwepemc Nation came out with a map of the areas where mushroom picking was allowed. Other Secwepemc bands have also put up signage instructing mushroom pickers and buyers that they were in the unceded territory of the Secwepemc people. In a move that shows how deeply people recent “Crown” land from belonging to Fist Nations, one of these signs outside of Lac Du Boise Grasslands Park near Kamloops was vandalized with a violent and crude message (https://www.kamloopsmatters.com/local-news/education-is-the-only-answer-to-ignorance-band-chief-responds-to-racist-comments-found-on-vandalized-sign-near-kamloops-973042).

How settlers pick wild mushrooms and other wild food can be a case study on how individuals can take small steps to recognize and reinforce (or deny and erase) First Nations right and title. Teaching the “Big History” or “Big Law” of First Nations rights and title is important, but may not be enough. In these lessons, there is an opportunity to also interrogate what mundane, everyday practices that settlers may be doing that disregards First Nations rights and title. It is in these small acts, as simple as picking a blueberry, or talking to your neighbour, that can help us all carry the responsibilities of reconciliation.

 

Top photo: Wild mushroom, known as a morel, growing on Fox Mountain, on Secwepemc territory, in Williams Lake, Spring 2018. Photo credit: Frances McCoubrey.
Many thanks to Rebecca Johnson and Gillian Calder for their helpful and patient edits and suggestions. 

The Blanket Exercise – Part 1

Introduction

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A basket of blankets ready to go

In the Fall of 2017, the UVic Law Faculty decided to involve the full first year law school class in a form of the KAIROS Blanket Exercise as part of our mandatory Legal Process Course. We had been reflecting on the possibility of doing something like a Blanket Exercise for a number of years.  The Truth and Reconciliation Commission’s Calls to Action(particularly #28, directed to Canada’s Law Schools) inspired us to start incorporating new ways of learning into our program.

In the interests of generating a conversation about embodied pedagogy and TRC work, I want to share here five different experiences that I have had with the blanket exercise (including the approach our law school took last year). Each encounter helped me recognize both the necessity and the challenges of doing trauma-informed, embodied pedagogy in the law school.

Just by way of provisional definition, by ‘embodied pedagogy’, I mean teaching in a way that acknowledges bodies, makes them visible, and moves them to the center of the learning experience. It is a way of teaching in which bodies are recognized as key to relationships, to understanding our histories of being, experiencing, and living in the world.

As you read about my description of each of the experiences I invite you to think about three different questions:

  1. What is the goal of the exercise? To share information? To gather information? To created a common foundation for further conversations?
  2. What advantages can embodied pedagogy bring to TRC work in the law school?
  3. Is it possible to create a safe space in which the experience can unfold, one that is trauma-informed?

By the end of this piece I hope to have articulated some of the reasons why the UVic Law School decided to involve all our students in the blanket exercises as a starting point for a common understanding of our history of Indigenous-Colonizer/Settler relationships. I hope also to have shared some insights that emerged from reflecting on multiple engagements with the exercise.

Encounter #1 – Nervous Reluctance at the Very Idea

My first encounter could perhaps be described as an encounter with an idea. That is, my first encounter was not through participation, but through description of the exercise: my colleague Maxine Matilpi had participated in a version of the KAIROS exercise, and suggested that we do it with our students at UVic. As I understood it from her description, a floor would be covered with blankets representing North America before contact. Over the course of an hour or so, people would be taken through Canadian history in a way that performed small-pox, genocide, residential school, the foster care system, dispossession and more. At the end of the exercise there would be a visual map capturing the ways in which colonial practices have resulted in fragmented communities. The exercise would be followed by a debriefing session in which participants could discuss their experience of the exercise. Maxine reported that participants had found the exercise to be a powerful way of understanding this swath of history in a more embodied fashion.

While the exercise sounded interesting, it also made me very nervous. It seemed like the exercise would raise a lot of hard questions in a context where I was not confident we in the law school (I?) would have the capacity to address them. I was worried that law students might be resistant, that it might generate backlash, and that it might produce more harm than good. But I kept my ears open. And other friends, including Hadley Friedland, stepped forward to make the suggestion again. But at each mention of the exercise, while I found myself saying that it sounded ‘conceptually interesting’, my primary affective response was one of nervous reluctance (and refusal).

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Doing the blanket exercise in Edmonton

It was several years later that Hadley Friedland did what both Maxine and she had suggested that UVic should do. That is, she used a form of blanket exercise at University of Alberta with a group of over 200 law students and faculty.  She adapted the Kairos script to be more attentive to the law school context.  She involved people from local Indigenous communities and from the Indigenous Bar Association to facilitate discussion groups after the exercises.  She didn’t let ‘logistics’ stop her: since there wasn’t a room large enough in their law school to physically pull this off, the exercise was run in the gymnasium at U of A.  The event successfully met its objectives. Click below for accounts of the U of A experience in 2016 and 2017:

With my nervousness about the exercise tempered by evidence of its success at the University of Alberta law school, I moved in the direction of a small scale experiement – trying it myself.

Encounter #2 –  The McGill Welcoming Week Version

The first time I myself participated in the Blanket Exercise was in Montreal during a Welcome Week at McGill. I was in town visiting my sister, and it just so happened that a group of McGill students (NOT associated with the law school), were running the exercise, in a week where there were multiple competing events.  I was, in some ways, “a stranger in a strange land”, and there was some comfort in the idea of trying the exercise out in a context where I did not know anyone, and nobody really knew me.  It was clear that time was of the essence and things were being brought together at the last minute. This is shorthand for saying, it was a very bare-bones exercise. The presentation didn’t feel glossy or polished. The people who were playing the roles of the facilitators and the settlers were volunteers. They were real people doing an exercise. There were no expectations that people had memorized or rehearsed lines, or that they were working to a professional standard. And so we were called in as participants in just the same way: there was no expectation that we had to do anything other than follow instructions.

Certainly, there was something quite powerful in having the exercise flow out in what felt like a very ordinary way.   I felt a certain democratizing impulse in it in the way that the script was there and it didn’t require someone with an exceptional speaking voice to have power.

I was also struck by the relationship between what I knew in my head, and what that knowledge felt like when it took an embodied form. During the exercise, I was given a scroll which was to be read aloud at the relevant time.   The text referenced the death of Indigenous women. There was nothing in the text that was new to me – by that I mean that the data was something that I was accustomed to teaching in my criminal law class.   Yet, having to read the words out loud in this context was very hard. It was all I could do to try to read the words without crying.   I was reminded that reading the words in my head is not the same as saying the words in ways which required my lungs to take breath, my vocal chords to do the work of speaking the sentence in time. It takes much longer to say the words out loud, than it does for my eyes to take in the meaning. Having to say it out loud is not the same as knowing it. Or as hearing it. I was reminded that the speaking of words makes them real, ‘in the body.’

I was also reminded that I have a great deal of personal discomfort with role-playing exercises. I am perfectly happy watching others do them, but I don’t have a strong desire to be a participant. Indeed, knowing that I might have to participate in something will often send me quite a few rows back in a classroom. I am much more comfortable in my head than in my body. I prefer talking about things to doing things. I am always aware of discomfort in my body when I am asked to perform in many of these contexts. I experienced some of this in doing the exercise, but in ways that involve productive discomfort.

As one example, the exercise opened with the instruction that we walk around on the blankets saying hello, greeting each other.   That activity, itself, often takes me out of my comfort zone. I don’t enjoy parts of classes where we are supposed to walk around and introduce ourselves. For one thing, I am often uncomfortable shaking people’s hands: with how hard to shake, how soft to shake, are their hands arthritic, do I need to be careful how hard I squeeze, are my hand clammy or sweaty, will they want to shake my hand, will it be gross for them to shake my hand, is my hand too rough, how long should I smile, should I get eye-contact. These kinds of questions are running through my head in those exercises, thinking about my own comfort and also about the community of others of my loved ones who really hate these kinds of exercises.

There is something staged and false about that intro that I can feel in my body in a particular way, so I don’t really enjoy it. As someone who does not come from and has not embodied the Catholic tradition, I have also felt that way at the end of the Catholic mass where people turn to each other and say, peace be with you. Every time I am in one of those moments, I find myself thinking of my mother-in-law, who told me that she found that the most powerful part of the whole mass. For her, those moments of connection were powerful.

And so while I find them uncomfortable, I appreciate that they may be operating differently for others. The point is just that the exercise pushed me immediately into a space in which my body’s own discomfort was mobilized. In taking that first step and literally stepping onto the blankets, I was trying not to let my nervous giggle surface, walking around, shaking hands with people I did not know, wondering if I was operating appropriately or not. For me, this discomfort was productive – my participation was largely an information-gathering exercise to inform whether I could bring back and use this exercise in the places where I worked and lived. So that was good for me to know and helped temper the discomfort.

I found myself wondering if the exercise would have been different with trained actors reading the main roles.   I also wondered if that would lead me to feel more engaged, or to experience greater distance. It certainly let me think about the real pragmatic questions about how much of the work is in the script of the exercise itself and how much is in the power-of-performance dimensions of the script. There was a debrief following the exercise. I did find that the conversation after the exercise was as at least as interesting as the exercise itself.

I came away from this first exercise with some valuable insights and with a curiosity and desire to participate a second time.

Click to continue to Blanket Exercise – Part 2

“The Confederation Debates”: Promoting Reconciliation in grade 7-12 Curriculum

“The Confederation Debates”:

Promoting Reconciliation in grade 7-12 Curriculum

 

Daniel Heidt, dheidt@uwaterloo.ca

Robert Hamilton, robert.hamilton1@ucalgary.ca

 

The pursuit of reconciliation between Indigenous and non-Indigenous Peoples is becoming more and more widespread, permeating unexpected aspects of Canadian life. Many teachers across the country are eagerly taking up this challenge, but sometimes struggle to find accurate and appropriate lesson plans to work with.

The Confederation Debates took up this challenge in one small area by developing mini-units for grade 7-12 teachers that bring Treaty histories into Confederation discussions. For historians and legal scholars, the term “Confederation” is usually constrained to visions of the 1864 conferences at Charlottetown and Quebec City with the likes of John A. Macdonald, George-Étienne Cartier and Leonard Tilley. A charitable few academics extend this to include the Red River Resistance (around present-day Winnipeg), British Columbia and Prince Edward Island, which all entered Confederation by 1873. Even these depictions leave out many of Canada’s provinces as well as Indigenous Peoples not present for the Red River Resistance.

The Confederation Debates challenges these preconceptions. In addition to expanding the temporal scope of “Confederation” to include Canada’s most recently added provinces and territories, its leadership wanted the project to affirm that Indigenous Peoples were — and continue to be — “partners in Confederation” (as the Royal Commission on Aboriginal Peoples insisted). Thus, on the project’s website, treaty texts and records of treaty negotiation are positioned alongside the verbatim records of legislative debates about each province’s decision to join or reject Confederation.

While the project lacked the resources to reproduce the texts of all historic and modern Treaties, along with the records of their negotiation our team, a multi-disciplinary team comprised of Robert Hamilton, Daniel Heidt, Jennifer Thivierge, Bobby Cole and Elisa Sance, developed educational mini units that allow grade 7/8 and high school students across the country to develop a multifaceted understanding of their province’s entry intoBC-ConfederationDebates-Cover Confederation. To guide this team’s work, the project’s leadership sought the guidance of John Borrows, who provided helpful and regular oversight. Each mini-unit, catered to address each province’s curriculum requirements, is split into “parliamentary” and “Indigenous” sections. The former provides the research sources and original records necessary for an engaging mock parliamentary debate on a province’s entry into Confederation. The latter section contains two lesson plans about Indigenous peoples and their roles in shaping the country.

In developing these lesson plans, we sought to challenge historical narratives which minimize or erase the role of Indigenous peoples, providing an understanding of Confederation which recognizes Indigenous agency. This required rethinking notions of Confederation that construed Indigenous peoples as cultural minorities within a broader political community.  These activities were developed to emphasize simplicity, Indigenous agency, and fiduciary obligations. To that end, the mini-units begins with a brief summary for teachers about conceptualizing confederation:

There are two very distinct stories we can tell about Confederation and Canada’s Indigenous Peoples. In one story, Indigenous Peoples are largely invisible. Here, their only presence is found in s.91(24) of the British North America Act, 1867, where “Indians, and lands reserved for the Indians” were deemed to be federal, as opposed to provincial, jurisdiction. This has subsequently been interpreted as providing the federal government with a power over Indigenous Peoples and their lands. The Indian Act of 1876, which is largely still with us today, was passed on this basis. This created what political philosopher James Tully has called an “administrative dictatorship” which governs many aspects of Indigenous life in Canada. Many of the most profoundly upsetting consequences of colonialism are traceable in large part to the imposition of colonial authority through s.91(24) and the Indian Act of 1876. 

But there is another story as well. Canada did not become a country in single moment. Though the British North America Act, 1867, created much of the framework for the government of Canada, Canada’s full independence was not gained until nearly a century later. Similarly, the century preceding 1867 saw significant political developments that would shape the future country. Canada’s Constitution is both written and unwritten. Its written elements include over 60 Acts and amendments, several of which were written prior to 1867. The Royal Proclamation, 1763, for example, is a foundational constitutional document, the importance of which is reflected by its inclusion in s.25 of the Canadian Charter of Rights and Freedoms. The Royal Proclamation, 1763 established a basis for the relationship between the British Crown and Indigenous Peoples in North America. By establishing a procedure for the purchase and sale of Indigenous lands, the proclamation recognized the land rights of Indigenous Peoples and their political autonomy.

Both the pre-Confederation and post-Confederation treaties form an important part of this history and what legal scholar Brian Slattery calls Canada’s “constitutional foundation.” It is through Treaties such as these that the government opened lands for resource development and westward expansion. It is also through the treaty relationship that Indigenous Peoples became partners in Confederation and helped construct Canada’s constitutional foundations. 

Our challenge was to present narratives of Confederation that provide students with a glimpse into the complexity and pluralism in Canada’s founding in ways that were historically accurate and accessible for students in the grade ranges we targeted.

Towards this end, we developed two exercises focusing on Indigenous issues as part of the lesson plans. The first is a “leaving a trace” exercise that helps students to understand how cultural misunderstanding can come about, as well as how historical events are shaped by both the chronicler and the interpreter of historical narratives. The exercise requires students to silently draw their own recent activities or conversations and then ask their peers to interpret those ‘records’ without any contextual information. This exercise encourages students to think critically about the materials used in their second activity.

The second activity is a mock “museum curation” exercise where students learn about a Treaty in their province by breaking into groups to study one of up to six ‘artifacts.’ One group researches the treaty, other groups study Indigenous and Crown negotiators, and at least one group studies a cultural object that was important to the negotiations. For example, in the British Columbia exercise, groups receive one of the following:

  • Text of a Vancouver Island Treaty
  • Biography of Sir James Douglas
  • Biography of David Latass
  • Biography of Joseph Trutch
  • Written description of the WSÁNEĆ reef net fishery
  • Records of treaty negotiation and comments on treaty implementation

Each item or historical figure was carefully chosen for the historical information and perspectives they exemplified. Teachers also have a list of questions to guide discussion. The first group is provided with a text of one of the Vancouver Island Treaties. We felt that it was crucial for students to actually engage the text of treaty.

ReefNets-ConfederationDebates

Using these ‘artifact’ records, each group is expected to produce an exhibit to share their findings (ex. a diorama, poster etc…) and the teacher then guides the class through the exhibit with questions designed by our team to spur discussion. In the case of the Vancouver Island Treaty, for example, the questions include:

  • What rights and responsibilities are recognized in the treaty?
  • The treaty uses complex and technical legal language. Did you find it easy to understand?
  • Would it have been difficult for people who did not grow up speaking English to understand the language used?
  • Which of the parties to the treaty might have benefitted most from having it written this way?
  • How might current understandings of the treaty be shaped by the fact that the only copy is written in English and articulated in dense legal language?
  • What might be missing from the treaty as it is presented here?

These questions were designed to help teachers to guide the students through a critical Mistahimaskwa-ConfederationDebatesreading of the text while developing their critical faculties. Some of the questions could elicit quite sophisticated answers. But we also believed that it could open students’ (and perhaps even teachers’) minds to new ways of understanding treaty relationships.In addition to these questions, The Confederation Debates encourages teachers to invite local Indigenous leaders to also join this tour, hoping that it will allow these local leaders to comment on the displays and raise important questions about representations of historical relationships and the nature of the Crown obligations undertaken in the treaties.

Taken together, our team hopes that these activities will be one of the many tools that teachers will use to help their students explore history, historical narratives, Indigenous agency, and the meaning of Confederation. By helping students to learn that Confederation encompasses all of Canada’s provinces, territories and Indigenous Peoples, we hope to foster dialogues that will improve Indigenous and non-Indigenous relationships.

This work, however, is not yet finished. To complete its bold vision of educational materials, the project is still in need of volunteers. Despite undertaking considerable preliminary planning, the project ultimately lacked the resources to complete mini-units for the territories as well as Newfoundland and Labrador. If anyone is interested in co-developing the Treaty sections of these mini-units, please contact one of us and we’ll be happy to share the work completed to-date.

 

 

Bannock, a Graphic Novel & Conversation: Re-framing Justice Using the Teachings from “Mikomosis and the Wetiko” — by Veronica Martisius

[Ed Note:  Veronica Martisius is a student at the University of Victoria Faculty of Law, the co-chair of the Indigenous Law Students Association, and was a co-op student with the Indigenous Law Research Unit at UVic during the 2018 Winter Term.  We invited her to contribute a post reflecting on the workshop discussed below.]

In the wake of the acquittals of Gerald Stanley and Raymond Cormier for the murders of two Indigenous young people, Coulten Boushie and Tina Fontaine, The University of Victoria arranged  ‘5 Days of Action’.  During those 5 days, faculties and groups across campus held a number of action-based events.  One of these was a collaborative workshop involving the Office of Indigenous Academic and Community Engagement, the Office of Equity and Human Rights, and the Faculty of Law.  The two-hour workshop was held at the First Peoples House and was open to the public.  Approximately 40 people participated.  I was one of the facilitators of this workshop (along with Professors Gillian Calder and Rebecca Johnson), and offer here some reflections on the event.

The purpose of the workshop was twofold: 1) To actively engage in making UVic a diverse, welcoming and inclusive place to study, work and live and; 2) To create space for Indigenous laws. In their article Gathering the Threads, Napoleon and  Friedland remind us that “State law is not the only source of relevant or effective legal order in Indigenous peoples’ lives…Indigenous laws continue to [exist and] matter today.”

Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just.

The Stanley and Cormier cases illuminate ongoing institutional discrimination and systemic racism on the part of Canada and its laws.  In particular, Canada’s criminal justice system, which was imported from Britain and imposed on Indigenous peoples, does not reflect Indigenous values or notions of what justice requires nor does it incorporate Indigenous legal orders.  But what if it did?  What might that look like? To answer those questions we had the workshop participants take a close look at the story of Mikomosis and the Wetiko.

Mikomosis
Photo by: Veronica Martisius

The graphic novel, Mikomosis and the Wetiko, is based on a story told by Val Napoleon, drawing on graduate work done by Hadley Friedland (now published as The Wetiko Legal Principles) and by the Indigenous Law Research Unit (ILRU) while it was working on the Accessing Justice and Reconciliation Project.

The story explores the tale of a Cree man sentenced to death by a 19th-century Alberta court after carrying out an execution ordered by his Cree community  under a Cree legal concept known as Wetiko.

A team of Indigenous lawyers travel back in time to intervene and apply aspects of Cree law and legal processes not originally presented. With a more in-depth understanding of the circumstances, the court finds the accused not guilty.

*** In the graphic novel, Mikomosis executes Sap-was-te when it is determined by the decisions makers that there is no other way to keep the group safe from her increasing violence.  Just as execution would not be an option in Canadian law today, it is important to point out that this would never be a current option in Cree law today either. ***

You might be thinking to yourself, “why is this story relevant in responding to the Stanley and Cormier verdicts?”

It is relevant because, as Robert Clifford (2014) argues, “colonial power structures are best mitigated and subverted by applying Indigenous narratives, including Indigenous systems of law.”  In other words, Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just.  Mikomosis and the Wetiko is one example of how Indigenous societies used and applied their own legal principles to deal with harms and conflicts between and within groups and how they might be usefully applied today.  For information about a current example of Indigenous law and procedure in action on Coast Salish territory, click here.

During the workshop we started off by asking the participants two questions:

1) What do you think of, or picture, when you hear the word, ‘law’?; and

2) What do you think of, or picture, when you hear the concept ‘Indigenous laws’?

As you can see from the two images above, when thinking about the ‘law’, participants used various words that reveal what may be attributed to its adversarial nature.  When thinking about ‘Indigenous laws’, participants used words that reflect a more holistic approach.

After the large group discussion, we divided up the participants into groups of three. Over a delicious lunch of soup and bannock, we asked each participant to read the graphic novel.  In addition to being provided with a copy of the graphic novel, participants received a handout including a glossary of terms and Cree words, and a set of ‘re-framing’ questions that move from generalizations to specifics.  For example, with respect to the latter, moving from “what is aboriginal justice?” to “what are the legal concepts and categories within this legal tradition?”

After lunch, each group engaged in a facilitated conversation.  To help guide the conversation, we used the Mikomosis and the Wetiko: A Teaching Guide for Youth, Community and Post-Secondary Educators, and asked the following questions at page 40:

  1. What does the graphic novel make you think about?;
  2. What part made the most sense to you, or felt the most uncomfortable?; and
  3. If you were a character in the graphic novel, who would you be? Who would you most want to sit down and talk with? What would you ask that character?

Each conversation generated a diverse range of comments and questions around the relationship between Indigenous laws and Canadian law, pan-Indigeneity, responsibility vs. guilt, safety and protection of the victim(s) and the community, different legal processes, burden of proof, gendered power dynamics, ‘Whiteness’, decolonization, and dispelling stereotypes about Indigenous peoples.

Discussion Visual
Discussion Visual

Participants expressed a desire for change with respect to addressing and eliminating the injustices that Indigenous peoples continue to face.  They talked about how to affect change in their daily lives through introspection, getting to know the local Indigenous community, learning about the land they live, work and/or play on, their responsibility as guests/visitors, building relationships, engaging with their various social networks (family, friends, classmates and co-workers) about the issues, and lobbying the government.  At the end of the workshop, each participant wrote themselves a letter as a future reminder of their individual commitment to take up the Truth and Reconciliation Commission’s Calls to Action.

In a March 14, 2018 article that explores the idea of a cross-cultural criminal justice system, law professor, Marilyn Poitras said, “[g]oing home to suburbia or the farm or the reserve and shutting the door is not going to work. How are we going to open doors, open hearts, open conversations? For the sake of future generations people need to talk with each other.”

If you are an educator, lawyer, law student or a concerned citizen who is not sure how to spark up meaningful discussion about ways to re-frame justice in Canada, consider bannock, a graphic novel & conversation to get the ball rolling.

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