Tasha Henry (who wrote the post on “Art as Intervention“) sent an additional note pointing to a toolkit resource they had found especially helpful for teachers and professionals trying to organize reconciliation events. She noted the following tips:
Ensure that the location is culturally safe and accessible to everyone invited.
Ensure proper acknowledgement of the territory at the start of the event.
Where possible, invite an Elder to open the event with a blessing and invite them to give you direction and advice to ensure proper protocol is being followed. Be sure to find out how best to honour their time and contribution.
Where possible, explore ways to incorporate Indigenous cultural practices into the event in a respectful manner, such as singing and drumming by Indigenous community members. Make sure to honour this contribution.
Approach guests/speakers as early as possible, and ensure that all aspects of the event including honorariums are clearly communicated in writing.
Arrange for food and drinks. Sharing food is an essential part of the event.
Where possible, invite participants across sectors and cultures (e.g. multicultural organizations, Indigenous organizations, faith based organizations, the justice system, restorative justice groups, Ministry of Children and Family Development, First Nations Court workers, social service workers, counsellors, health care professional, women’s organizations, child and family services etc.)
This discussion may be triggering to some participants, so make sure that supports and opportunities for debriefing are available on-site.
Consider funding costs to cover transportation for guest speakers if required.
In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontainecase at the Supreme Court of Canada. So… I thought I might as well get my stresses and anxieties articulated.
As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).
At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records. Now there is significant contestation: should the records be kept by Archives Canada? By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed? Should individual former students have a say in the matter?
The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR. At the end of that period, all remaining documents are to be destroyed. The SCC will hear the case on May 25, 2017.
The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition). The Coalition is described thus:
We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors. The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents. The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents. The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.
I personally support the Coalition for Truth.
What has been tricky for me is trying to describe what this support means. So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this. This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).
In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case. Canadian law sees this as a story of privacy and confidentiality. It that the story that best describes the situation here? A story about the need to honour individual choice? A story about the protection of individual interests in privacy and confidentiality?
Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools). And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury. Should the records related to residential school survivors be kept or destroyed? What are the relationships of the individual to the collective? To the past? To the future? The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.
To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples. Will this case be similar?
That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’. It matters that there is space for Indigenous Laws to be enacted here. Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.
I think that is why the intergenerational point the Coalition is making is so important. It is a question of Law. During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective. We already know that those stories we gathered and collected in ‘non-optimal’ ways. That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc). They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).
And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.
As the case is set out, the solution is one which is flawed in so many ways. I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed. I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered. The choice — Keep or Destroy — is a false and cruel one. (i.e., would you prefer I cut off your right arm or your left arm?) Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.
And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’. But the history of residential schools IS my business. It is all our our business. And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).
There is no easy solution here. But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated. It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)
It matters not just WHAT the Court does here. It matters also HOW the Court does it.
Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.
How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws? How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?
How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future. Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?
What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously. It invites us to understand that we (indigenous and settler people) are both a part of this story. It invites us to take seriously how we think about shared memory, and a shared past. It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings. Preserving Truth invites us to change the story we are telling about this case.
It invites us to imagine that it may be possible to simply stop for a moment. What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making? What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation? What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)
Of course, it is hard to talk about this without getting personal (or being personal?) Easy to blame the system. I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present). What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?
OK. Rant over for now. My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.
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.
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:
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 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.
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.