Learning and listening

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Several years ago, I made a mistake.  In return, I received an invaluable gift.

Teaching jurisprudence for the first time, I assigned Margaret Davies’ wonderful book Asking the Law Question.  That was not the mistake! In fact, I love that text and teaching from it was a joy.  Davies combines a deep knowledge of legal theory with a narrative voice that brings the salience and joy of ‘doing theory’ to life.  The book includes considerable attention to Indigenous legal theory by scholars who live and work in the country we know as Australia, the country where I grew up and received my first legal education.  I was glad to have that content (and context) to share with my students at UBC, because I felt it would offer them some sense of how Indigenous scholars elsewhere have grappled with and made sense of colonialism, neo-liberal governance, and violence.

My mistake was to overlook the importance of offering students an Indigenous take on these issues that came from their place and their context.  When I taught Australian Indigenous theory to my students, and talked to them about The Ranger Uranium Mine and Jabiluka and about The Aboriginal Tent Embassy, I hoped to open conversations about the similarities and differences between settler colonialism and Indigenous resistance as it played out in Australia and in Canada.  However, many of my students – at a time before UBC had implemented its Aboriginal constitutional law module – lacked the context and the history of Canadian colonialism that would have made these comparisons meaningful.

More importantly, for my Indigenous students, studying Indigenous legal theory and examples that originated in Australia was deeply frustrating: they had looked to this course as an opportunity to read and discuss some of the brilliant work by Indigenous scholars who belong to Indigenous communities in Canada and work in this space.  They also wanted to read work by non-Indigenous scholars who have written thoughtfully and knowledgeably about Indigenous people and the Canadian legal system.

The gift I received was that three of my Indigenous students decided to discuss their concerns with me.  They explained why they felt frustrated by the reading and discussion we’d had under the umbrella of “Indigenous legal theory”.  They asked me to reconsider for the following year.

I will always be grateful to those students for having the courage to speak to me.  It is not an easy thing to challenge one’s professor.  Even less so when the thing you are challenging them about is something that is fundamentally important to you.

In preparation for the coming year, I have been reading Sheila Cote-Meek, Colonized Classrooms: Racism, Trauma and Resistance in Post-Secondary Education.  This book, and a recent article in This (The Canoe and the Ship) have reminded me that post-secondary education is too often an exclusionary experience for Indigenous students.  My reading makes me value my students’ willingness to engage in dialogue with me even more.

I can only hope that in my response to them, I acknowledged their courage and the gift they were giving me by reaching out to me.

After their visit, I pulled books from my shelves and articles from my database.  Anyone who has taught will understand the care with which we select the one or two pieces we ask students to read, and the dismay with which we set eight or ten pieces aside for every one we set.  After much mulling, I decided to defer the planned syllabus for two classes and to ask students to read two pieces:

John Borrows, Creating an Indigenous Legal Community

Sherene Razack, Gendered Racial Violence and Spatialized Justice

The conversations we had about these two pieces were some of the best we had all term.  We all learned a great deal that week – perhaps me most of all.

Reconciliation is a hopeful word.  A word that promises a way of doing things that will bring people together with shared respect and a sense that we all have much to learn.  It is a word that challenges those of us with relative power – professors and teachers – to adjust our way of doing and being educators.

As we begin a new academic year, and seek to enrich and deepen the #Reconciliationsyllabus, my reconciliation includes being open to hearing from those who have the courage to make things better, and being open to changing course in response to what I am learning.

The Skirt Project: connecting gender, religion, and colonialism

My name is Natalia, and I am a third year law student at the University of Victoria. I grew up on the territory of the Qayqayt First Nation, in New Westminster, British Columbia, and have since lived on Otomí, Totonac, Nahua and WSANEC lands. I’ve spent the last four months as a summer research assistant to Professor Rebecca Johnson, who has given me fascinating research tasks as well as significant freedom to explore related topics.skirt poster

The research project started with a question about skirts. Why are women in some indigenous communities required to wear long skirts to participate in spiritual ceremonies? This question about a practice known as the “skirt protocol” quickly blossomed into a series of interconnected queries about the relationship of clothing to culture, religion, tradition, gender, colonialism, and identity. The complexity of these topics led me to simplify my job description when asked about it, and as a result most of my friends and family have been extremely jealous of my summer job “googling skirts”.

googly squirrel

And I did engage in a significant amount of exploratory googling, bookmarking hundreds of newspaper articles, blog posts, and Twitter exchanges with the word “skirt” in the title. I also just talked to people. In casual discussions with family and friends about my research, I was really struck by how many individuals have had something to say about it. Almost every single woman I spoke with (and a few men, too) immediately wanted to share a personal anecdote about a moment in which they confronted rules about what they could or could not wear. For many people, these stories brought up strong feelings of anger, indignation, and resentment, even when they had occurred years earlier.

stripe skirtThis was particularly true of my aunt, who recalled being made to kneel on the ground as a seventh-grader while her school principal measured the distance from her hemline to the floor. She describes being made to feel ashamed and embarrassed. hijabHer mother, my 81-year-old grandma, remembers the incident as well. She marched to the school to support my aunt knowing that the skirt did, in fact, violate the dress code, because my aunt had outgrown it and she couldn’t afford to buy a new one – and because the vice principal’s own daughter had worn the exact same skirt and had not been punished. For my aunt, the primary injustice of the situation was related to gender; the dress code was unfair because it imposed much stricter rules on girls than on boys. For my grandmother, the injustice was class-based: the dress code was unfair because it was hard for lower-income families to ensure their children complied with it, and because it was unevenly enforced based on social rank. Both my aunt and my grandmother were right, and their experiences only go to show that rules about clothing are not neutral, arbitrary, or trivial, but in fact affect people in diverse and disproportionate ways.

But what does this slight from nearly five decades ago have to do with reconciliation?

churchRules about how we dress are sometimes obvious and sometimes not, but either way, they are so ubiquitous that nearly everyone can recognize the symbolic power of clothing and identify with the experience of being told what or what not to wear. This means that clothing provides a really useful “way in” to more complex debates about cultural identity, spirituality, tradition, and gender in indigenous and non-indigenous communities. Serious tensions over how women should dress occur across diverse populations, but they are further complicated for indigenous peoples by the legacy of colonialism and the ongoing struggle to decolonize. Questions about whether the skirt protocol is really an indigenous tradition quickly give way to questions about how colonialism affects traditional practices, who has the power to decide which traditions are valuable, and how people are differently impacted by traditionalism depending on their gender. Learning about the rationales for the skirt protocol quickly spawns more questions about the relationship between spiritual belief and indigenous identity. Exploring indigenous identity leads to important questions about cultural authenticity. web

This month, British Columbia will implement a new K-12 curriculum which mandates inclusion of indigenous content, perspectives, and pedagogies, and the National Inquiry into Missing and Murdered Indigenous Women will officially begin. The new curriculum responds to the Truth and Reconciliation Commission’s 94 Calls to Action by attempting to address the education system’s failure to acknowledge the grievous harm done by colonialism, and the system’s own role in committing and perpetuating that harm. The Inquiry will attempt to understand and address the enormous problem of violence against indigenous women. I think that reconciliation is best served when we make visible the connections between these two projects.

Over the summer, I developed a series of resources which I hope will be useful for learning and teaching about these connections and for facilitating conversations about how clothing is connected to gender, colonialism, religion, culture, and identity, using the skirt protocol as a point of entry. The resources are varied in scope and content. They include a short video as well as a Prezi presentation, and a paper entitled Clothing the Collective which explores these topics in greater detail. There are a series of workshop ideas and lesson plans: see the Talking Skirts Lesson Plan and Backgrounder and the Creating Conversations Activities. There is an annotated list of existing teaching resources, which I’ve categorized by grade level and format: see Teaching Resources. All of the materials have also been consolidated into a single document, available here: The Skirt Project Consolidated Materials. I hope that these materials can be of use in responding to Calls 27 and 28 and 60 to 63 of the TRC’s Calls to Action.

This project received support from the Religion and Diversity Project and the Indigenous Law Research Unit. For further information, please feel free to contact myself at nsudeyko@gmail.com, or Professor Rebecca Johnson, at rjohnson@uvic.ca.

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“You’re Not the Indian I Had in Mind”: Jess Housty On Respectfully Working in Indigenous Communities

I started my day with my morning tea and these illuminating words from Jess Housty. From her Twitter profile (@heiltsukvoice), Jess Housty describes herself as: ‘Cúagilákv: Community agitator; mother; tribal councillor; admirer of gentle warriors; foreign-funded radical; Indigenist; unapologetically . Though I haven’t met her myself, I have had the opportunity to hear her speak about her work on the campaign to end trophy hunting in Heiltsuk territory. She speaks eloquently and passionately about the importance of collaboration, perseverance, and staying grounded. Check out her other writings here.

Now back to the article. This article is a MUST READ for all Canadians. I really mean that. Though she is writing to a specific audience (film-makers who want to film in Indigenous communities), her words carry with them a much broader significance. Housty leaves this final message:

Reconciliation isn’t about federal apologies or one-time marches in the street. It’s about re-evaluating how you carry yourself in the world in relation to Indigenous peoples. There’s a great deal of learning (and unlearning) to do and I hope you intuit how important and transformative the journey can be.

In the article, she describes the many problematic ways in which films are made in Indigenous communities and provides practical alternatives to people who are interested in working with Indigenous communities. Housty asks all the good questions that people tend to shy away from. Her article addresses the following 8 questions:

  1. Are you centring Indigenous voices and perspectives?
  2. Do you expect Indigenous people to stage their culture for you?
  3. Have you done your homework?
  4. Are you clear on ownership and intellectual property?
  5. Have you thought critically about compensation and benefits?
  6. Are you building capacity or just extracting resources?
  7. How do you feel about leaving final approvals or ownership of footage with us?
  8. Are you playing up stereotypes or open to authenticity?

These reflections and suggestions for improvement are certainly relevant in the law school environment where professors are tasked with implementing the TRC Calls to Action and promoting reconciliation. There are endless ways that this article could prove useful to professors in Canadian law schools. For example, professors could assign Housty’s article as reading and then ask each student to analyze a media piece (film, article, news clip) on a legal issue in Indigenous communities with Housty’s words in mind. It is also directly relevant to any professor or student who intends to do legal research with Indigenous communities.

These words keep coming back to me, as I wander through my day. I reflect on the work I have done as a lawyer working with Indigenous communities. Have I done a good enough job centring Indigenous voices and perspectives? Have I been building capacity? Compensating properly? And on and on. I welcome the opportunity to reflect on my work through a new, sharper lens and am thankful that Jess Housty shared her words with the world. So go ahead and read the full article here.

Small Steps on the Path Towards Reconciliation at the University of Ottawa Faculty of Law

WLMC.jpg_Page_1_Image_0002Sarah Morales and Angela Cameron

The University Of Ottawa Faculty Of Law has been collectively working towards understanding and implementing the Recommendations of the Truth and Reconciliation Report, released on Dec, 15, 2015. We have had long discussions and debates in large groups and small, in formal settings such as faculty retreats, and over intimate meals with smaller groups. We have not always agreed on how to move forward, and have tossed around various models, ideas and plans. Lead by our Indigenous faculty; Tracey Lindberg,  Larry Chartrand, Sarah Morales and Darren O’Toole, we have learned to live with the fact that our approach may not be perfect as we start out, but that we are committed to refining our plan or even changing paths as we learn more.

In anticipation of the release of the final report we invited Indigenous scholars to participate in the Dean’s Distinguished Lecture Series and focus their remarks on Indigenous law and legal traditions.  Dr. Ray Austin gave a lecture on November 10th, 2016 focusing on the movement to develop tribal courts and tribal law as effective means of modern self-government.  His remarks specifically addressed the complicated task of using traditional Navajo values to address contemporary legal issues.  Prof. John Borrows also gave an inspiring talk on Nov. 17th, 2015. His remarks focused on Indigenous methodologies in teaching and he spoke about his approaches which incorporate being on the land, and learning Indigenous laws in the places that they are forged.

On February 17, 2016 we held a talking circle, let by Elder Claudette Commanda of the Algonquin Nation. The circle included interested Indigenous and non-Indigenous students, professors and staff members. This circle helped us to shape the terms of reference for a key step: hiring an Indigenous Affairs Co-ordinator. The Co-ordinator is intended to provide cultural and academic support for our Indigenous students, and assist and lead faculty in our reconciliation project. We are excited to welcome Katherine Koostachin of Attawapiskat First Nation to the faculty on July 27th, 2016 as our Indigenous Affairs Co-ordinator.

Following the circle we continued to discuss the challenges we faced on the road to de-colonisation. It became clear that many individual professors were already consciously teaching in a de-colonising frame, or were including Indigenous laws and legal orders in their course materials. Following the release of the Final Report and recommendations in December, 2015 we began to develop the outlines of an approach to reconciliation at a faculty level. We have set up a small group of first year professors, covering all courses, who are committed to incorporating either a de-colonising lens or Indigenous laws and legal orders in a clear and unambiguous way into their courses. This includes our mandatory legal research and writing and dispute resolution courses. A small cohort of self- selected first year students will follow this reconciliation curriculum. *We have hired research assistants to support professors in developing or deepening course materials, and have organised a reading and discussion group of these self-selected professors to learn together. This group of professors also participated, on June 6th, 2016, in a workshop on Indigenous legal methodology with Hadley Freidland of the Indigenous Law Research Unit at the University of Victoria Faculty of Law. We were joined by Prof. Jeff Hewitt (Cree Nation) of the University Of Windsor Faculty of Law who participated as an invited expert.

This first year ‘pilot project’ will provide us with a starting point to evaluate our approach, and consider introducing some or all aspects to a larger part of the student population.

We continue, of course, to offer a large number of excellent upper year courses taught by Indigenous faculty that treat Indigenous laws and legal orders, Aboriginal law, and reconciliation as their core subject matter.

At a broader faculty level we invited Prof. Rebecca Johnson to our faculty retreat in April, 2016. Rebecca brought a methodology to the larger faculty audience that makes the TRC recommendations easy to access and teach, and provided us with a number of excellent pedagogical entry points. The workshop was hailed ‘the best retreat ever’. In particular faculty loved the way Rebecca’s methodology opened the TRC recommendations to private and public law scrutiny, and built on professors’ existing subject matter knowledge. It also demonstrated that there is so much to teach and learn about within the TRC that does not require us to magically and suddenly develop a deep knowledge of Indigenous laws and legal orders- which can at times be a very intimidating proposal for non-Indigenous faculty.

Finally, our first year orientation will also feature a reconciliation theme. Prof. John Borrows will address the entire first year class, and all first years will participate in two important workshops: 1) an introduction to law that places Indigenous laws and legal orders on the same footing as common and civil law and 2) an overview of the Truth and Reconciliation Commission.

*This relatively small cohort will also take some classes within larger groups. In these larger groups, as a result, more students will be exposed to the reconciliation curriculum by default.

 

Revitalizing Indigenous Law for Land, Air and Water

group chat in forestgroup photo day 1 Hike look out moss on hike

In this post I wrote for the West Coast Environmental Law blog, I reflect on the value of enacting and learning Indigenous law on the land and through ceremony. I also explain the exciting RELAW Project (Revitalizing Indigenous Law for Land, Air and Water) that WCEL is doing in partnership with UVic’s Indigenous Law Research Unit.

Check out the post here.

 

Reflections on the Role of Stories in Law

Pipsell Title Declaration
Pipsell (Jacko Lake), the site of “Trout Children” and the Ajax mine proposal (Photo: Bonnie Leonard)

 

TRC Call to Action 50 states:

50. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.

This Call to Action urges us to properly value the potential of Indigenous law institutes and the need to take Indigenous laws seriously as laws. In this blog post, I reflect on my experience “developing, using, and understanding” Secwepemc laws through work with the Indigenous Law Research Unit (ILRU) and the Shuswap Nation Tribal Council (SNTC).

I focus on the power of stories in Secwepemc law. My hope is these words will reveal the importance of funding Indigenous law institutes by demonstrating that researching Indigenous law is possible. 

I also hope to encourage people to find a story from the territory you live on and engage with the laws within it using your whole self.

Because stories are so central to this work, I will begin with a story…Read Blog Here!

Reckoning with the Role of Universities in Reconciliation

UOIT reconciliation panel

Course Overview

In my fourth year Legal Studies course, Public Governance through Law, at the University of Ontario Institute of Technology, we examine ways in which the administrative state deploys law in identifying and responding to public policy challenges. We concentrate on a series of contemporary governance challenges, in order to bring context, depth and continuity to the subject matter of the course. One case study we undertook focused on the question of the “role of universities in reconciliation.”

Public Panel

During our usual three hour time slot, students were asked to attend a public panel, featuring a range of Indigenous and non-Indigenous researchers, teachers, and political leaders. The eight speakers were Phil Fontaine (former AFN Nation Chief), Kelly LaRocca (Chief of the Mississauga of Scugog Island First Nation), Natalie Oman (UOIT), Kirsten Anker (McGill University), Carl James (York University, Suzanne Stewart (University of Ontario), Tim McTiernan (President of UOIT), and Shirley Williams (elder and professor emeritus, Trent University). A video recording of the event is available here: https://www.youtube.com/watch?v=8Oge0lcgTIA

Framing

A key question when exploring the project of public governance through law is: what role can and should citizens play in the endeavour? We examined this question in the context of universities, by exploring how students participate in the formal and informal governance of universities. In other words, we began by thinking about the role that students play in creating law—both in a formal and explicit way, as well as an informal and implicit manner.

Thus, the learning objectives that day were:

• To identify and explain what civic participation by university students means and point to examples both inside and outside of the university context
• To critically examine the purposes universities serve and explain what you think the point of being a university student is
• To explore why the recent report by the Truth and Reconciliation Commission of Canada on Residential Schools bears relevance to universities, the students, faculty, administrators and staff who make them up

Materials

I asked students to read an extract from two articles:

• Rhonda Wynne, “Higher Education Student Civic Engagement: Conceptualizations of Citizenship and Engagement Strategies”
• Planas et al., “Student participation in university governance: the opinions of professors and students” (2013) 38:4 Studies in Higher Education 571

I assigned the first reading in order to get students reflecting on the theme of civic engagement and the second to analyze purported barriers to student involvement in shaping how universities function and therefore how they experience their third-level education.

We began class with a brainstorming exercise on all of the different ways students can participate in the governance of university—from holding an official position on the executive of the student union, simply voting in student elections, engaging in sit-ins, boycotts, protests etc. Next, we explored some accounts of the purposes universities ought to serve: ought they to be strictly economic or are they in fact primarily ethical enterprises? Why or why not do students see themselves implicated in the public mission of university?

In the third portion of the class, we shifted gears. In anticipation of the public panel, we watched two video clips: a short documentary featuring the legacy of residential schools about Wab Kinew, his father and son called “Surviving the Survivor” https://www.youtube.com/watch?v=EPX9a5r6uAQ and a news report on the filing of the Indian Residential Schools Truth and Reconciliation Commission final report https://www.youtube.com/watch?v=lKKLgwlosaw

We then discussed what the relationship has been between universities and Indigenous peoples in Canada and canvassed perspectives on whether and what kind of role universities might have to play in reconciliation. In anticipation of the panel the following week, I assigned the following readings:

• Murray Sinclair, “What is Reconciliation?” Truth & Reconciliation Commission of Canada online: https://vimeo.com/25389165
• Rosemary Nagy & Robinder Kaur Sehdev, “Introduction: Residential Schools and Decolonization” (2012) 27:1 Canadian Journal of Law and Society 67
• Tim McTiernan, “Universities Will Help Reset Relations Between Indigenous and non-Indigenous People” The Globe and Mail (29 June 2015), online: http://www.theglobeandmail.com/opinion/universities-will-help-reset-relations-between- http://www.theglobeandmail.com/opinion/universities-will-help-reset-relations-between-indigenous-and-non-indigenous-people/article25150361/
• Thomas McMorrow, Natalie Oman & Rachel Ariss, “Indigenous studies is central to liberal arts education in Canada” Ottawa Citizen (21 December 2015), online: http://ottawacitizen.com/opinion/columnists/op-ed-indigenous-studies-is-central-to-liberal-arts-education-in-canada.
• Mandee McDonald, “Unsafe Space: The Danger of Mandatory Indigenous Studies Courses” Northern Public Affairs (18 February 2016), online: http://www.northernpublicaffairs.ca/index/unsafe-space-the-danger-of-mandatory-indigenous-studies-courses/

UOIT reconciliation panel 2nd shot

Assessment

Students were asked to write a reflection on their experiences of the panel and/or create a short video reflecting on themes explored that day. Also, one of the questions on the final exam asked students to write a memo outlining what they thought universities can and should do in order to foster reconciliation. Thus, students had an opportunity to express their thoughts and feelings about the panel themes, while at the same time demonstrate their critical analysis of the concepts and proposals in the literature.

Rich with diverse identities and experiences, the panel appeared to capture the interest of all the students who attended (45/49)—or at least, so they said in their reflections. The backgrounds of the panelists are indicative of the complex, nuanced and fascinating conversation that unfolded. For instance, Carl James is a professor of education, former Affirmative Action Officer at York and an African-Canadian born in the Caribbean. Phil Fontaine was the longest serving National Chief of the AFN, and is an Ojibway from the Sagkeeng First Nation in Manitoba. A residential school survivor, he was credited by the TRC for speaking publicly about his experience of sexual abuse in residential school thereby pushing the need to address their effects onto the national agenda. President Tim McTiernan, an Irishman, is the University’s President and at once, a government negotiator on Indigenous land claims in the Yukon. Shirley Williams was the first person promoted to the rank of professor at Trent University on the basis of Indigenous knowledge. Hailing from the Wikwemikong reserve on Manitoulin Island, the Obijwa elder also survived residential school. Psychologist and education scholar, Suzanne Stewart is from a Dene family whom she noted has been deeply affected by the trauma of the residential school system. Natalie Oman, a professor of Legal Studies at the UOIT, who hails from a settler family in rural Ontario, has done extensive fieldwork with the Wetsuweten and Gixtsan First Nations in British Columbia. McGill law professor Kirsten Anker is an Australian, married to a Frenchman, raising her children in Quebec while exploring Indigenous ways of conceiving and living property and legal pluralism. Kelly LaRocca is a former civil litigator, Chief of the Mississaugas of Scugog Island First Nation and sometime lecturer at Sir Sanford Fleming College.

Seasoned speakers with interesting stories offered good fodder for student reflection and discussion. The following class- some days before the reflections were due—we did a debrief on the panel and attempted to draw connections between that discussion and the ones we had about universities in general and the role of students in shaping them.

UOIT reconciliation audience

Student Learning

Some of the analyses, for their depth and clarity warrant quotation; for example, one student wrote:

[D]ue to the accountability deficit, the Federal Government needs to take leadership on nationally redressing the harms experienced by indigenous persons and that this needs to be done through consultation with indigenous persons. It is not enough to make a change in one area of law or society, for a change to be lasting it needs to be normalised into every area of public life. Education is one area that would benefit from reform so that correct knowledge is disseminated to raise attention, understanding and compassion to the situation of Canadian indigenous peoples. Reconciliation efforts need to be carefully analyzed so that these initiatives are not a more insidious form of colonialism and that education on and education of indigenous peoples is not further complicit in culture stripping and identity loss.

It should be noted that this particular student was also taking a research-based course on atrocity crimes against Indigenous peoples in Latin America. Designed and led by Natalie Oman, the student research informs her project (and forthcoming report) for the United Nations on this subject. An outstanding example of the integration of research, teaching and public service related to Indigenous issues, if ever there was one.

Another student reflected:

I hesitate to dismiss the role of university as a mechanism for reconciliation, but believe it must use its cultural capital only in such a manner as to legitimate devolution of political power. The discretion over the degree to which western institutions actively insert themselves into the process of reconciliation, represents the fundamental challenge for the balancing of social interests. It may equally represent the moment at which western institutions are forced themselves to evolve as an articulation of contemporary knowledge systems and culture. But this decision I leave to those on whose behalf such a change would be designed to benefit.

Maybe less polished but even more powerful reflections were shared also, like this one:

The sad reality of my upbringing has personally embarrassed me today because of the manner in which I can relate to the stereotypes expressed by Shirley Williams. Many people scoff and righteously reject the idea that these stereotypes exist within Canada, but the truth is they do and for many of us are attempted to be woven into our sub-consciousness from a young age. I was not taught to physically mistreat or abuse indigenous peoples, but I was not taught to respect them. I was informed that they were drunks who chose to live off welfare rather than work for a fair wage. Indigenous people were not proud people, they were a primitive culture attempting to usurp our new wave westernized philosophies. I had been always reminded that historically Canada did nothing wrong, and that the indigenous tribes were merely attempting to extort more land out of the government in order to establish a lost art, a lost culture. Now, couple this mindset with the lack of education taught in schools concerning indigenous history and it creates a foundation built on ignorance and misinformation.

“After attending this presentation I have come to regret my previous course selections. At the beginning of my year at the University Of Ontario Institute Of Technology, I spent two years essentially studying introductory courses. After those were completed I was able to narrow my studying, focus my selections around topic areas I found interesting and that coincided with the area of law I was interested in going into. Unfortunately, with my lack of knowledge and background into aboriginal studies I took few courses concerning this topic area and spent very little time absorbing new information. I regret this wholeheartedly now, which is why I respectfully agree with both Kelly Laroc [sic] and Dr. Susan Stuart’s [sic] suggestion of creating a mandatory indigenous studies course. I do not believe that teachers and professors are aware of the lack of appropriate knowledge being administered to their students. This is why the idea around universities becoming a part of the reconciliation process for the indigenous communities of Canada is so important. Students need to be properly engaged and informed of the real history of Canada in order to make even the slightest attempt to reconcile with indigenous societies.

Another reflection in particular evinced much less distance from and perspective on the embodiment of colonialist attitudes. Being able to read these reflections informed how I framed class discussion. Also, as I mentioned, students had the option to create three minute videos reflecting on the themes covered in the two classes on student participation in universities and the role of universities in reconciliation. I created this option for students who were unable to attend the #TRUR event (although could view its recording after the fact) or who preferred to express themselves in this medium. I encouraged students to do both and said they’d receive whichever grade was higher. Hardly any took on both. And few took advantage of the invitation to be as creative as possible in designing and producing their videos. Most simply recorded themselves speaking. One, however, used an online animation program, so her narration of the history of residential schools and the implications of the TRC for universities today was alive with dynamic illustrations. I used this clip in our review in the last class. Student generated content, demonstrating student learning, can be a wonderful teaching tool. Finally, many of the recommendations and arguments expressed in their exam responses have informed my grasp of the question of how universities in Canada and the UOIT in particular can respond meaningfully to the TRC’s call to action.

Our Voices, Our Stories

OUr Voices pic

“I want to get rid of the Indian problem… Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department…”

Deputy Superintendent of the Department of Indian Affairs (1913-1932), Duncan Campbell Scott

My grandmother, Jean Jones/Borrows, ran away from home so she would not have to attend residential school in Ontario. Her siblings did not run away, and were taken to residential school. My grandma still expresses guilt that she could not help her siblings. She says, “sometimes there are things in life you can’t get over, but I believe you can get through them”.

From 1929-1975, an estimated 9,200 Indigenous children attended St. Michael’s Residential School in Alert Bay, BC.

One week ago I watched a film by renowned director Barbara Cranmer (‘Namgis First Nation) entitled, Our Voice, Our Stories. It told Truth. It showed Reconciliation. It illustrated Indigenous law in action—ceremony, mending harms, decision-makers coming together in deliberation, and the ongoing obligations to share stories.

The film was a story of people tending to a wound that they might not get over, but that they are getting through. The film showed residential school survivors coming together along with their descendants and allies from across British Columbia to watch the demolition of St. Michael’s Residential School. It was inspiring to see people together again to continue their healing.

One does not usually think of a demolition as a ceremony. For those who attended St. Michael’s Residential School, the school’s destruction was a form of emotional, intellectual, cultural and spiritual reconstruction. People wore button blankets, cedar woven hats, smudged with medicinal plants, sang, cried, embraced, told stories, and came together. The crumbling of the red brick school building lined with narrow rectangular windows stood in stark contrast to the strength of the people who participated in the ceremony. The sparkling blue ocean, surrounding forests and distant mountains also witnessed the ceremony.

What stood out to me the most out of the dialogue in the film was a young girl who said she saw a little boy’s spirit leave the residential school during the demolition. She said he looked happy to be leaving. To hear that acknowledgement of freedom coming from such a young voice gave me shivers and hope.

During the question and answer session filmmaker Cranmer said there are no plans yet as to what will replace the demolished school in that now empty space. While law schools will likely not physically build anything in that empty physical place, the spaces in people’s minds can be filled with knowledge and discussion about how to heal and learn moving forward. Barbara has not yet made any specific plans about teaching curriculum to share the film but she is very open to being contacted to allow people access to the film and to use it as a teaching resource. Her band office can be contacted. It is an informative and affective resource for bringing Our Voice to Our Stories.

The trailer can be watched at: https://vimeo.com/141833166 

 

 

 

Truth and reconciliation seminars

The University of Manitoba Centre for Human Rights Research and the National Research Centre for Truth and Reconciliation organized a 2014-15 seminar series called Critical Conversations on Truth and Reconciliation. It featured University of Manitoba researchers and others from a range of disciplines. The seminar series was co-ordinated by Prof. Karen Busby, Faculty of Law and CHRR director, Ry Moran, director of the National Research Centre for Truth and Reconciliation and Dr. Jocelyn Thorpe, Faculty of Arts (Women’s & Gender Studies). Law and graduate students participated for credit but the seminars were also open to the public.

See seminar summaries and podcasts here.

RES-VP-009-CHRR-Poster-FNL

Responding to the TRC in the First Year Tort Law Classroom

One of the many gifts I received when I joined UVic was a first-year tort law program developed by Elizabeth Adjin-Tettey, Donald Galloway and John McLaren that paid attention to the impact of the tort law system on vulnerable and marginalized people. Over the years we have been particularly attentive to the ways in which Survivors of sexual, physical and cultural abuse in residential settings have used (or tried to use) tort law actions to seek redress from individual perpetrators, and institutional and state officers. For example, we have used Muir v. Alberta 1996 CanLII 7287 (AB QB) to discuss the historical and social context of the institutionalization of persons with disabilities, and the eugenics movement that underpinned the state-sanctioned sterilization that is at issue in Muir. And we have examined the problem of limitation dates for historical abuse Survivors that the TRC identifies in Call to Action No. 26 through discussion of M(K) v. M(H) [1992] 3 SCR 3 and the legislative amendments that some legislatures have passed to eliminate limitation dates for sexual abuse claims, and in some cases, physical abuse claims (see e.g. ss 3(1)(i)-(k) BC’s Limitation Act). Limitation dates are not the only problem for historical abuse Survivors, and I have also discussed government use of Crown proceedings legislation to create cut-off dates that restrict recovery.

The history and legacy of the residential schools have always been part of our discussions of the advantages and disadvantages of tort actions for Survivors seeking justice. In particular, this legacy has been at the heart of our discussions of the development of vicarious liability doctrine – from the promise for Survivor compensation signalled by the expansion of the meaning of “scope of employment” in cases such as Bazley v. Curry ([1999] 2 SCR 534) and Blackwater v Plint (2005 SCC 58) in which non-profit, charity and government employers were vicariously liable for abuse perpetrated by their employees, through to the narrowing of the doctrines signalled in cases such as B(E) v Order of the Oblates of Mary Immaculate in the Province of British Columbia, (2005 SCC 60). In classroom discussions I have drawn on Bruce Feldthusen’s “Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2431786 and Sheila McIntyre’s “Guardians of Privilege: The Resistance of the Supreme Court of Canada to Institutional Liability for Child Sexual Abuse” in Sanda Rodgers, Rakhi Ruparelia & Louise Belanger-Hardy, eds, Critical Torts http://store.lexisnexis.ca/store/ca/catalog/booktemplate/productdetail.jsp?prodId=prd-cad-00721&changeLocale=fr_CA. Bruce’s piece in particular is a powerful indictment of the tort law system’s response to residential school Survivors’ claims. His suggestion that the Supreme Court of Canada could create a new form of strict liability in cases of child abuse in institutional settings generates classroom discussion about the vulnerability of children in institutional care, litigation strategy, and the appropriateness of courts creating new common law doctrine to achieve “just” results.

I am on sabbatical this year, so I’m not teaching torts, but I’ve been thinking about how to respond to the Truth and Reconciliation Commission’s Calls to Action the next time I’m in the classroom. For the Report and the Calls to Action demand more of my torts class than I’ve provided to date. And given that the TRC was created as part of the agreement to settle Survivors’ class action lawsuits against the federal government and the Anglican, Presbyterian, United and Roman Catholic churches in Canada (http://www.residentialschoolsettlement.ca/IRS%20Settlement%20Agreement-%20ENGLISH.pdf), the tort classroom seems a particularly fitting place from which to respond to the TRC Report and its Calls to Action.

So here are some preliminary thoughts …

For a few years now I’ve been feeling that, despite the attention in our course to the effect of tort law on marginalized and vulnerable people, I do not sufficiently problematize the question of the tort law system’s ability, procedurally and substantively, to provide healing – both psychological and physical. So I am thinking of trying to do this more consciously with students through examining the residential schools litigation process.

This examination would explore residential school Survivors’ efforts to seek justice through the civil system and could include discussion of the history of the residential schools, and the barriers to Survivors’ claims that we have traditionally covered – limitation dates, vicarious liability doctrine and Crown proceedings legislation. Damage assessment has not generally been a topic we cover in torts, as students can take remedies and restitution in their upper years. But I think there would need to be discussion of the ways in which traditional damage categories and quantification methods do not adequately recognize and respond to the harms that residential school Survivors have suffered, particularly their cultural and language losses.

The residential schools litigation process could be used (1) to explore the challenges and benefits for Survivors’ in pursuing civil claims; (2) to think about the benefits and pitfalls of alternative settlement dispute processes; and (3) to evaluate both the substantive and procedural aspects of the Indian Residential Schools Settlement Agreement itself. In her article “Righting Past Wrongs Through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1816464) my colleague Elizabeth Adjin-Tettey argues that a compensation process should be judged by “how well it addresses the full range of harms suffered by survivors, their families and communities.” This question could easily be the touchstone for this examination of the residential schools Survivors’ efforts to seek justice.

I have not yet determined what I would assign, nor have I reflected on how I would engage with these issues in the classroom, but I do have a sense of some of the resources I would look to in developing the curriculum and pedagogy. These would include the TRC reports and some of the materials on the history and legacy of the residential schools referenced in the other posts on this site. Elizabeth and I have written about the problems of limitation dates here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1932455), and I’ve written about the problem of crown proceedings legislation here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130833. Both Bruce’s article and Elizabeth’s (referenced above) provide comprehensive overviews of the problems residential school Survivors face navigating the tort system, including the inadequacies of the remedies.

The common law tort system’s inability and unwillingness to address the cultural and language loss claims in the residential schools litigation is the subject of Zoë Oxaal’s “‘Removing that which was Indian from the Plaintiff’: Tort Recovery for Loss of Culture and Language in Residential Schools Litigation” (2005) 68 Saskatchewan Law Review 367 and Carole Blackburn’s “Culture Loss and Crumbling Skulls: The Problematic of Injury in Residential School Litigation”, (2012) 35 PoLAR: Political and Legal Anthropology Review 289, an analysis of the challenges that Survivors faced in making cultural and language loss claims in Blackwater v. Plint, based on a close reading of the audiotapes of the court proceedings. More generally, much can be drawn from a collection of essays devoted to Truth, Reconciliation and Residential Schools in the Canadian Journal of Law and Society (Volume 27(1)) and the recent special issue of the University of Toronto Law Journal (Volume 64(4)) on The Residential Schools Litigation and Settlement.

I’m keenly aware that these ideas respond only to the TRC call to ensure that law students understand the history and legacy of the residential school system, and the challenges within the civil justice system for residential school Survivors’ claims, particularly for those whose claims are not covered by the Settlement Agreement as their litigation continues to wind its way through the system. What I have yet to reflect on is the imperative that the TRC’s work creates for us to design a law school curriculum that engages with Indigenous legal orders. And I expect I will be thinking about this challenge for some time.

I would love to hear from colleagues about what you have done, or are thinking of doing, in your torts classes to respond to the TRC Calls to Action and to the imperative of engaging with Indigenous legal orders, and about additional resources you have found helpful for students or for your own teaching practices.