For the past few months, our “Looking Out For Each Other” research team has been conducting community consultations with a view to establishing a helpline for families and friends of Indigenous folk who go missing in Eastern Canada. In the course of these consultations, something has come up a number of times that seemed worth sharing among educators, viz. a concern by Indigenous businesses and not-for-profits that academics are getting in on the work of cultural competency training. Of course it is good that many faculties and departments are working towards developing cultural competencies in their students. And it’s great that some faculty are mobilizing that knowledge beyond campus. Apparently though, these efforts have sometimes resulted in academics using their privileged position as salaried workers to undercut the bids of Indigenous consultants who have been doing this work, in many cases for decades. So if your institution, faculty or department is developing curriculum and you are thinking of offering workshops to organizations, institutions or government departments, you may want to make sure that you are not replicating and/or competing with services that an Indigenous business or not-for-profit is offering in your area. One easy way to do this is to reach out to the band office of your local First Nation community, your Native Council and Friendship Centre for information about existing service offerings.
[Ed. note] The following post is a report by educator Tasha Henry, discussing a recent partnership between the Art Gallery of Victoria, and students in three schools. The work here, which was done with Grade 3 and 4 students, is a very interesting model of the kind of work one might consider when thinking about Art as intervention in the TRC Calls to Action (and indeed, art as intervention within a law school context). We thought folks would find it thought-provoking (and a bit inspiring!) Here, then, is the post by Tasha [and she has permission from the students and families to use the photos appearing in this post]
Taking a place at the table:
Art as Intervention in a Time of Reconciliation
By Tasha Henry
In collaboration with several artists of a recent exhibit at the Greater Victoria Art Gallery, entitled “It’s in the Making”, Selkirk Montessori students, were initiated into the world of art installation with contemporary artists who challenge the notion of art as product. The students met with Nicholas Galanin, Tlingit/Aleut artist and Cedric, Nate and Jim Bomford while they constructed their installations in the gallery. The grade 3-4 students interviewed the artists with questions such as:
- “Why is art installation important?
- When do you know when your art is finished?
- How is art an intervention?”
The students then attempted their own installation work in the gallery mansion as a response to their ongoing work with Canada’s Truth and Reconciliation Commission, “Calls to Action”.
Art installation as social intervention felt like the appropriate vehicle to explore the children’s emerging awareness and questions around the devastating history of Residential Schooling in Canada. As teachers, we are in the unique position to respond to the TRC’s Calls to Action in ways that model sensitive and historically respectful approaches to Canada’s shameful investment in Residential Schooling. Rather than approach this work as a prescriptive curriculum, we approached the concept of reconciliation as a process of responding to the ongoing impacts of colonialism on Indigenous communities. It was important to us that the children’s work around redress be responsive, multi-voiced and open ended.
To prepare for the day of the installation, for months, the children studied and learned from the Lkwungen First Peoples’ history and the traditional territories on which our school stands, known today as the Esquimalt and Songees Nations. The children were honoured to receive teachings by such highly esteemed and beloved artists and elders such as Richard Hunt (Kwakwaka’wakw), Butch Dick (Songhees), Monique Gray Smith (Lakota/Cree), and Ron George, Heredity Chief Tsaskiy (Wet’suwet’en).
They studied the cultural traditions of the Coast Salish First Peoples by attempting artistic forms such as beading, sewing button “blankets” on felt, and by constructing their own cardboard “cedar bentwood boxes”. They expanded their learning to conceptual art by analyzing the work of two contemporary Tlingit artists, Nicholas Galanin and Blake Lepine. The students were also introduced to the history of Residential Schooling through Nicola Campbell and Kim La Fave’s acclaimed children’s books, Shi-Shi-etko and Shin-chi’s Canoe.
The students were then given a white ceramic plate (bought from The Salvation Army) where they created their own free hand drawings using only red and black Sharpie markers. On the day of the installation, the students brought their ceramic white plates with their drawings carefully illustrated through a mix of personal designs and traditionally influenced images.
With the guidance of elder and artist, Butch Dick, the children were taught the importance of ceremony and the symbolism of laying a table in the Songhees tradition. They were asked to place their plates in the dining room area in a spot that meant something to them in relation to their understanding of the history of Residential Schooling in Canada.
With reverent gestures and words, the students spoke to their installation choices. They had been particularly struck by the descriptions of malnourishment from the testimonies of Residential School Survivors. Many of the children hid their plates under the large oak table, or under the chairs to represent the starvation of Indigenous children while at school. As the installation took its living form, the children chose to turn the chairs on their side, and to cluster their plates in the corners of the room to represent the upheaval of home and culture due to mandated schooling for Indigenous children.
Shion: “We put our plate above the fireplace so that people could remember the children that didn’t get to have these plates in Residential School. The fireplace is a symbol of First Nations hope”
James: “I put my plate away from everyone else’s because people were trying to destroy their culture and keep it away from them. Our plate represents the culture that was taken away from the kids.”
Maciah: “We put our plate on a shelf on a smaller table because maybe not all kids got to sit at the table and maybe had to sit on the floor. It was meaningful because we are bringing back the memory of First Nations kids who were forced to go to Residential Schools.”
By inserting their voices through the act of installation the students experienced a powerful social intervention. They were called to speak to their intentions to disturb the establishment of the Greater Victoria Art Gallery, on their own terms, in their own words. As Layla, a grade 3 student said, “When I made the drawing I felt I was learning about the culture and also doing something kind for the children by drawing their designs”. The children realized quickly that their art work was not for them; it was not a product to take home or display on the wall. As Adison said, “I like that some people learned that not everything is for yourself you have to make things for others, as well and learn about other cultures”.
In the collective experience of installing their art work as a social intervention, witnessed by their teachers and Butch Dick, who himself is a Survivor of Residential Schooling, the children experienced the importance of standing up for those who have been silenced. Jamie, a new student from Japan, reflected on the experience with poignant simplicity, “the kids couldn’t see their parents for a long time. So, we honour them.”.
After the children installed their work and spoke to their choices, we circled the installation and read this quote out loud:
“We are thankful for these and all the good things of life. We recognize that they are part of our common heritage and come to us through the efforts of our brothers and sisters the world over. What we desire for ourselves, we wish for all. To this end, may we take our place in the world’s work and the world’s struggle.” (J.S. Woodsworth)
When teaching a response to the Calls to Action, we can only hope that we are able to model what social justice learning looks like within the various institutions that frame social thought. This is not work that can rely on detached lessons within the confines of a classroom. The work of reconciliation must be work with the First Peoples of the land from which we learn, through meaningful, conscious and open ended forms that refrain from a settler agenda, or desired outcome. By precisely not desiring an outcome or a finished product, the children’s temporary installation became a visual testament to the missing and unaccounted for children due to Residential Schooling. On that day, it wasn’t our words that filled the space, it was the sound of children moving with intention, fuelled by a quiet collective heat burning within each of them, to seek retribution for children they had never met. Their innate desire for reparation permeated the space, and moved them to set a place at the table for the Indigenous children who were not permitted their rightful place in Canadian society.
Photo credits: Tasha Henry
[Ed. Note:] A truncated version of this discussion can be found on the Victoria Art Gallery’s website (http://emagazine.aggv.ca/partner-school-inquiry/)
The Supreme Court is going to hear the Fontaine case in May 2017. It deals with the destruction of records and testimony gathered during the Independent Assessment Process of the TRC.
The Coalition for the Preservation of Truth [organized by artist Carey Newman] was just granted Intervener Status in the case.
ILRU (the Indigenous Law Research Unit) is one of the supporters of the Coalition. We have been thinking, in particular, about the resources in multiple Indigenous Legal Orders across Canada to respond to questions raised by the case about privacy, truth, harm, and the significance of records such as these.
If you have ideas or thoughts, you can get in touch with the organizers through their facebook page. There is little in the way of turn around time, as the case is to be argued in Ottawa on May 25. But, for those of us teaching in law, its significance will continue past that date. The case is going to be very helpful as a teaching resource.
Attached is a copy of the Notice of Motion to a Judge or the Registrar and Affidavit #1 of Carey Newman in support of the application. Here is the Exhibit A to Carey Newman Affidavit in support of the Affidavit if you want to see the documents supporting the arguments about intergenerational effects.
I am also attaching a link to the gofundme site. I am always reluctant to share such links in case it makes people feel there is a pressure on them to contribute. So… please do not feel that pressure (or rather, feel free to pass the link along to others who might be happy to feel such pressure! hahaha).
That being said, for pedagogical reasons, it is worth LOOKING at the video that Carey Newman made for the site. It is short: 1:45. Still, in it you can see how Carey [whom you may know as the artist of The Witness Blanket], with his artist eye, sets up the centre of the intervention in visual/auditory form.
That is, look at the video thinking about the mixture of image, text, voice, music, and movement as its own form of legal argument
Inspired by the work of this blog, Dr. Anna Lund and I gathered together a group of corporate and commercial law professors from five different law schools at the CALT annual conference in Calgary last May, to talk about how we include – or how we plan to include – Indigenous content in our courses. The Roundtable was a chance to speak publicly about what we were doing in response to the TRC and to get helpful feedback from the large and engaged CALT audience. After the Roundtable, we sat down to record our ideas and concerns and to summarize the discussion in Calgary, in order to share it with the broader legal academic community. The result was published recently in the Lakehead Law Journal. The classes discussed include Business Associations, Corporate Governance, Secured Transactions, Personal Property Security Law, Judgment Enforcement, Debtor and Creditor Relations and Pension Law and Policy. We hope our fellow corporate and commercial colleagues find it helpful, and we welcome your further ideas, responses and critiques.
The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:
- Aboriginal rights
- Indigenous law
- Aboriginal-Crown Relations
If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations”
The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act. I first heard about the case in a newspaper report, and was completely taken with it!
- Here is a link to Justine Hunter’s article, “Traditional Justice”, published in The Globe and Mail, January 8, 2016.
- Here is a copy of the Case Comment/Case Report, summarizing the case, and signed by the Chiefs of the Esquimalt and Ditidaht First Nations. i-5-sentencing-dec-11-15-signed-chiefs-case-comment (with many thanks to lawyers Steven Kelliher and Declan Redman)
This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law). Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.
ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations
Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht  (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk. They were in favour of conservation, and the conviction of poachers.
As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.
Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.
The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.
A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.
Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.
Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge: given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.
The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.
In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:
- Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
- Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
- Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.
 The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.
- one could supplement this case through reference to two ILRU reports: Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
- There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.
THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT
- This case is great for teaching “Sentencing”. It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair. It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less. Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done. The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
- This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws. To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals. In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child). This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death. This indicates the importance of Indigenous laws pertaining to human/animal relations. Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
- This case is great for exploring Conflict Resolution in the context of International Law. On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law. However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht). What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations. The eventual solution is one that accords with the needs of all three legal orders. From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.
By: Valarie Waboose and Gemma Smyth
We write from the Faculty of Law at the University of Windsor, located on unceded Anishinabe Territory, the territory of the Three Fires Confederacy, Windsor, Ontario. We write, here, about experiences we had in organising and delivering an Anishinabe Law Camp for the Faculty of Law at the University of Windsor, on Bkejwanong Territory (Walpole Island First Nation) with Professor John Borrows (UVic), Professor Heidi Kiiwetinepinesiik Stark (UVic) and Hannah Askew (West Coast Environmental Law). The camp was held over a four day period between April 14 – 17, 2016. We have divided this blog into two voices: one from Professor Valarie Waboose and the other from Professor Gemma Smyth. We hope these two contrasting voices will shed light not only on our experiences in the Camp, but also on the roles and experiences of Anishinabe and settler peoples engaging in reconciliation-related teaching and learning experiences.
First, reflections from Professor Valarie Waboose.
I am an Anishinabe-Kwe from Walpole Island First Nation, the second oldest child of two residential school survivors, a mother of two, grandmother of 7 and great-grandmother of 1. I am a 1st degree member of the Three Fires Midewiwin Lodge. My life and worldview centres around the Anishinabe teachings of the Midewiwin Lodge. I have resided on Walpole Island First Nation most of my life and have worked within this community for at least 20 years. During my lifetime I have completed a bachelor’s degree, a law degree, masters of law degree and a Ph. D. From 1996 – 2002 I worked as In-house Counsel to the Walpole Island First Nation and served for two terms on Walpole Island Council. My familiarity with the community was key to organising the Camp and ensuring it proceeded in a good way.
I offered to host an Anishinabe Law Camp in the spirit of reconciliation and a movement towards understanding and sharing an Anishinabe way of life. Windsor Law faculty and staff, as well as Elder and residential school survivor Susie Jones had been working together over 2015-2016 on a Truth and Reconciliation Steering Committee. This Camp was key as a first step in introducing faculty members more deeply to Anishinabe law and legal traditions.
Bkejwanong Territory (Walpole Island First Nation) is located in a secluded area adjacent to waterways leading to Lake St. Clair and surrounded by miles of untouched marshlands and natural habitat. The land was an important teacher throughout our time together.
The agenda for the camp was developed using a template by Professor John Borrows of University of Victoria and included stories, songs and circle discussion. Approximately 10 faculty members and their families attended to learn about Anishinabe epistemology from a number of invited guest speakers, each knowledgeable in a different area of Anishinabe life. The agenda included as many aspects of Anishinabe life as possible including history of Walpole Island First Nation, the legacy of residential schools on Walpole Island, a medicine walk, cultural teachings, storytelling and ceremony, circle sharing, boat tours, songs and dance.
In our reflections on the camp, it was clear that it was well received by all in attendance. The personal transformations in each participant was profound. An important aspect of the camp was the spirituality present during this four-day event. Within Anishinabe lifeways, spirituality is a major component of every aspect of personal and community life; as such, this aspect was important to understand the teachings shared during this event. Having members of the Midewiwin Society present and sharing their Indigenous knowledge during the camp enriched the participants’ understanding and incorporation of Anishinabe spirituality.
In my view, the spiritual realm within the four quadrants of the medicine wheel is one quadrant that is rarely touched within the practice of law. For some, entering this space may feel frightening but for others can be insight into their ways of being and understanding Indigenous law. As an Anishinabe Kwe teaching in a colonial institution I feel that young and aspiring lawyers need to learn how to get in touch with all quadrants of the self as reflected within the medicine wheel: mental, emotional, physical and spiritual. Taking this step and learning about oneself and how self fits into the natural order of the universe is a very humbling experience and can make a difference in their future practice of law.
Another highlight of the camp was having John Borrows, Heidi Stark and Hannah Askew share methodologies of incorporating learning from the land into the classroom setting. Their use of song, Anishinabemowin (Ojibway language) and storytelling was an incredible experience even for me as an Anishinabe Kwe. The work that they are currently doing in relation to Indigenous Legal Traditions is cultivating a new path towards understanding and teaching law to future lawyers. Perhaps, this new path is so far removed from the current norm and many will not be comfortable using these new methodologies. However, if one wants to fully understand and appreciate Indigenous Legal Traditions the person must embark upon this transformative journey. Reading about Indigenous Legal Traditions is only part of the equation; to actually be in a natural setting, experiencing the spiritual aspects of Anishinabe lifeways and learning about Indigenous legal traditions from Indigenous teachers is central to a deeper understanding of Anishinabe Law.
Second, reflections from Professor Gemma Smyth.
I am a settler whose family originally landed in Treaty 6 territory having been “granted” land in Saskatchewan. I grew up in Anishinabe territory not far from Bkejwanong First Nation (Walpole Island). My late father taught high school at the town nearest Walpole Island and I attended high school with kids from Walpole Island. It is with a mixture of regret and excitement that I am only recently discovering more about the teachings, histories, and peoples of this incredible place. It has been an honour to work with Professor Waboose on the Truth and Reconciliation Commission Steering Committee as well as the Anishinabe Law Camp. Before engaging with what I learned during the Camp, I must first confess to a deep degree of cultural incompetence, much of which I learned about through experience. My ignorance was treated with kindness and gentle correction, rather than rejection. I am indebted to all the teachers and community members for their patience in helping the camp go in a good way.
There is a significant volume of literature on transformative learning experiences and, writing as someone who has crafted them for students and in a professional context, this experience has given me a much deeper understanding of what “transformation” can really mean. The learning environment at the Camp unfolded in an entirely non-threatening, non-judgmental and emotionally open way such that even the most cognitive-focused among us were affected. For me, this emotional openness was key to unlocking my own colonial ways of feeling, thinking and acting. For example, we had a working agenda with times assigned for particular activities. However, the Camp proceeded as it felt right rather than by the prescribed agenda. If members of our group were struggling, everyone supported the experience of that member and adjusted as needed. Nothing was more important that the wellbeing of the people and the environment around us.
Most of us are familiar with the cognitive-behavioural-affective triangle of learning, and many of us have critiqued lack of attention to the affective in legal education. As Professor Waboose writes, above, the Camp challenged me to take seriously a fourth dimension – the spiritual. As someone who works primarily in clinical and experiential legal education and employs feminist pedagogies, the Camp taught me about how to better connect with students (and myself) through reflective space. Critical reflection, reflection-on- and in- action are commonplace concepts in feminist and clinical and experiential education. I often wonder, however, how deeply I allow myself and my students to engage as emotionally, and particularly spiritually, engaged people. The process of learning with and from community deeply challenged the individualistic, neoliberal tendencies in education that have sneakily entered my understanding of law and my work as a teacher and activist. The Camp reminded me of how uncomfortable Western educators are with engaging with whole person in the classroom. The Camp also helped to reconfirm the value of some of the teaching methodologies I use but worry are too “alternative” for students to take seriously.
There were also a number of activists in attendance (myself included). Because of the “white saviour” tendencies common to some activist communities, I had to deeply deconstruct my own instincts to jump into a problem without fully understanding it, and without honouring the community’s own ability to support themselves. As we were reminded, Indigenous communities need allies, not saviours. I am indebted to the community for teaching me how to be politically engaged in a more thoughtful way.
So where to go next? What began as a response to the Truth and Reconciliation Commission has refocused on the relationships we have with surrounding Indigenous communities, and also with our missions as educators, and with ourselves. I don’t want to be naïve about the challenges ahead. As one Elder rightly noted, colonizers have a deep history of learning in the moment and forgetting once back in their ‘natural habitat’. The tug between a more expansive and flexible vision and enactment of time, a more intimate connection to the visceral experiences of land and animals, the connectedness of all beings from the very young to the very old, is virtually absent from my work life. I would be disingenuous to pretend that this will immediately change, but I now find myself consciously working to challenge these ways-of-being.
In future, members of the Windsor Law faculty, staff and students hope to work with the community to expand this opportunity to staff and students. We also hope to maintain relationships built during the Camp and introduce more creative placements. It became clear through this Camp that relationships must guide our work.
The new term is upon us and at UNB, like every other law school across the country, we are thinking about the TRC calls to action and how to best respond. The other day, we were lucky enough to have Charlene Bearhead visit UNB’s Faculty of Education, which included a public event on indigenizing the university. An important part of the discussion was about the role of mandatory courses and mandatory curriculum. We all agreed that having one mandatory course would be insufficient in law or any program, but there was some discussion about whether having mandatory courses on Indigenous law and governance, Aboriginal law (I am using that term as a shorthand for settler law applied specifically to Indigenous people(s)) and so forth was a good idea.
The discussion took me back to a conversation I had with Karen Drake from Lakehead earlier in the year after a brilliant talk she gave at UNB on the need for mandatory courses and curriculum. At the time, she argued that faculty should be directed to include mandatory curriculum into their courses. I thought that would be easier to do for courses where the course description included those elements, but felt that directing faculty to include mandatory curriculum where this had not been the product of a collegial process was offensive to academic freedom principles. Karen was of the view that academic freedom attached to the ‘how’ but not the ‘what’ of curricular development. Talking about it more, I came to understand that my reliance on the collegial process was informed by my context of strong academic freedom protections under the UNB collective agreement and a very long history of collegial governance, while Karen’s views were informed by an institutionally younger context. Anyhow, we were both talking about the need to think through the academic freedom piece and she thought I should write something and I agreed and then summer happened and here we are.
The question we were wrestling with is this: when we commit ourselves to responding to the TRC calls to action, particularly to 28, how will we respond to professors who choose not to include aspects of a curriculum we would like to make mandatory for all students. Would it be permissible for a dean to discipline a faculty member who fails to include Aboriginal title in their first year property course? Or pushes it to the end of the syllabus, where it will predictably not get taught? I continue to think that coercion has no place in TRC implementation, and Karen and I were quite agreed that it would be disappointing and less than ideal if it came to that. Where we disagreed was whether it was possible.
My thinking about academic freedom has been profoundly influenced by Jon Thompson, a mathematics professor emeritus at UNB, former chair the CAUT’s academic freedom committee, inaugural lecturer of our faculty association’s Jon Thompson annual academic freedom lecture, investigator of the York conference controversy (No Debate: The Israel Lobby and Free Speech at Canadian Universities. Halifax: Lorimer, 2011) and coauthor of the report on Dr. Olivieri with Jocelyn Downie and Patricia Baird (The Olivieri Report: The Complete Text of the Report of the Independent Inquiry Commissioned by the Canadian Association of University Teachers. Toronto: Lorimer, 2001). He pointed me to the recent statement of academic freedom articulated by the AUCC (now Universities Canada) and the more elaborate CAUT statement, which makes express mention of freedom of teaching as follows: “Academic freedom includes the right, without restriction by prescribed doctrine, to freedom to teach and discuss.” In a personal conversation, Jon also noted that the history of academic freedom shows that it tends to be progressives who are disciplined, not late adopters.
On its face, the CAUT statement does not answer the question whether academic freedom covers only the ‘how’ and not the ‘what’ of teaching, and the AUCC statement is even less instructive. So I turned to the arbitral jurisprudence. It turns out that there are not many decisions that address academic freedom in the context of teaching. But I did find a couple that might be helpful. One is a recent Quebec decision involving Concordia University where the collective agreement specifically protected the rights of instructors to pick their own teaching materials. Despite this, the grievance was denied in the context of a multi-section course because academic freedom of teaching was found to be constrained by a general ‘reasonableness’ requirement. Also, the institutional purpose of delivering the multi-section course in a consistent manner was found to be compelling, particularly when the requirement to use particular materials was the subject of express language in the job ad. It is noteworthy, however, that the decision affected the right to recall of a part-time instructor for a particular course, rather than a discipline grievance by a tenured or tenure-track professor.
The second potentially relevant case is from Memorial. Here, a professor’s right to determine the final mark for a student in her course was in issue. In that case, the arbitration board found that the university had violated the professor’s academic freedom, but not because her freedom to mark student work was unlimited, but rather because academic freedom has a procedural rights component that meant she had a right to be included in the discussion. This is not on point in terms of teaching materials, but the notion that academic freedom principles could be respected through process is helpful.
In an ideal world, the general enthusiasm for and commitment to implementing the calls to action would be sufficient for pervasive and comprehensive curricular reform. My sense from speaking with colleagues across the country is that faculty everywhere are working on this with dedication, creativity and love. Maybe it is because I have been working in faculty labour relations for too long, but I would nevertheless be surprised if the issue of mandatory curriculum inside of existing courses will not give rise to tensions somewhere along the way. In particular, what is true for many of our students is also true for many of us: we simply know too little and do not have confidence in our ability to teach a reconciliation curriculum. I am therefore incredibly grateful for all the contributions to the blog project, it is the kind of capacity-building that is desperately needed. Maybe we don’t have to answer the academic freedom question, but I hope that if we do, we will find ways to make progress as colleagues.
Jula Hughes is an associate professor at the Faculty of Law at the University of New Brunswick and a former president of AUNBT, the UNB faculty association.