Indigenous Ways of Being and Knowing (A Try): An Exercise in Family Law and Sex-O at UVicLaw

(The featured image entitled “Sen” is the work of Uumati Kisoun-Inuarak, more of her work can be found at http://www.uumati.com)

 

This post contains an exercise that I designed for my Family Law class at UVicLaw (Law 322) in the Fall of 2016 and then revised for my Sexual Orientation and the Law seminar (Sex-O) in the Fall of 2017.  My goal with both classes was to respond to Call to Action 28 by raising as central to our study — both of families and of sexual identity — issues of colonialism.  And, my goal was to do it at the outset of the course so those issues would serve as a lens through which we approached all questions throughout the term.

My hope here is to share what I did in those classes (the try that it was) so that anyone could pick it up, adapt it slightly, and use in their own course.  So, I will outline in a “how to” kind of way, what I did in both classes.  And then at the end I will reflect a bit on how it worked.

I.  Family Law.

Family Law at UVic is an upper level elective course with a cap of 50 students, taught twice a week for 90 minutes.  It is taught with two volumes of materials, the first addressing family formation and the second addressing family breakdown.  Given the complicated ways that law impacts our understanding of “the family” the first part of the course is evaluated by essay with the subject chosen by the students.  This enables me some pedagogical freedom.  The second part of the course addresses the more conventional issues of divorce, custody, division of property and support, and is evaluated by take-home examination.

There is not a single issue that we address in family law that will not in some way or shape impact someone in the class.  This is something we address explicitly at the outset of class; we know what “the family” is in family law because we have lived them.  The need to recognize that in class participation is critical, and wherever there is a more embodied class, like this one, I ensure, as best I can, that students know the content we will be covering.

The role that colonialism plays in family law in BC has always been central to the course, particularly on questions of family formation, but in Fall of 2016, I decided additionally to address the TRC’s calls to action with a standalone class.

In a semester of 25 classes, this was the third class coming after a introductory class, and a class that set out histories, definitions and legal change, and before dealing with constitutional frameworks Reading Outline Law 322 2016.

The question posed to the class in advance of class was “how does the legacy of residential schools inform our understanding of the family and family law in 21st century Canada” and the reading for the class was the Introduction to Honouring the Truth Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (pages 1-21) Executive Summary TRC1 and then excerpts from The Survivors Speak, A Report of the Truth and Reconciliation of Canada (pages 1-22, 31-46, 99-108, 201-203) The Survivors Speak TRC2.

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The students were also asked to come to class with an example of when they had seen the story of residential schools in popular media for sharing with their classmates; and with a reminder of the nature and difficulty of the subject matter we will address.

At the outset of class the students had an outline to show the four components of the class: introduction to TRC28, sharing their popular culture moments, Briefing a Story, and then discussion of the TRC and its connecting significance to the course as whole (TRC class outline).

Introduction. As the class was settling I had set up my child’s turntable, and was playing  a vinyl version of Gord Downey’s The Secret Path.  I begin by very briefly addressing TRC28 and then move to discuss the history of residential schools as the explicit policy of the Canadian government to eliminate Indigenous governments and legal traditions in Canada through assimilation.  And specifically, how at the heart of this cultural genocide was the need to disrupt the family, the unit recognized y then governments as the primary vehicle through which Indigenous laws and values were shared and learned.

Popular culture.  I then divided the class up into groups of four or five, giving them a few minutes to share with each other how residential school issues have been made visible to them in popular or other media.  After some time I then charted them up on to the board and later provided the list as a handout with some space for discussion about where, when and how these issues should be taught Shared residential school resources 20-09-16.

Briefing a story. In their same groups I then introduced a case briefing exercise drawing on the methodology developed by Drs Val Napoleon and Hadley Friedland and employed at the heart of the work of UVic’s Indigenous Law Research Unit (ILRU).  This part of the work may seem daunting, but here is where I really encourage colleagues to give this work a try.  If you can do a workshop with ILRU that would be ideal.  But if not there is detailed information about the history, ethic and structure of the methodology in ILRU publications like their Gender Inside Indigenous Law Toolkit or in scholarly writing like Hadley and Val’s article, Gathering the Threads.

Since its origins, the people of ILRU, Val, Hadley, a cohort of students, researchers and others, began to look for Indigenous law sources and resources in the myriad places they have been recorded.  And drawing on the work of Dr John Borrows and others, ILRU began to retells stories and cases, using an adaptation of the common law “case-method” to identify legal principles within single stories, to address the resurgence and revitalization of Indigenous laws.

So, in each group I gave them a publicly-accessible story that has formed part of ILRU’s work.  One of the students in each group read the story aloud, and then the students set out to use the framework, shared by ILRU, to prepare a “brief” of the story.  To move through stereotypes and assumptions, to see Indigenous laws in the present tense, and to see legal concepts and categories, legal principles, legal processes for decision-making and problem-solving.

Screen Shot 2018-01-06 at 6.30.58 PM

(Art by Dr. Val Napoleon)

Case brief:     Name of story with full citations

Issue/Problem: What is the main human problem we are looking at within this story?  What is it that the story is trying to tell us?  It may be more effective to frame this as a question that one can then answer through the analysis.

Facts:  What facts in the story matter to this particular issue?

Decision/Resolution:  What is decided that resolves the problem?  If there is no clear human decision, what action resolves the problem?

Reason (Ground/Ratio): What is the reason behind the decision or resolution?  Is there an explanation in the story?  If not, what can be inferred as the unstated reason?  What is the “why” behind the decision or response?

Bracket:  What do you need to bracket for yourself in this story?  Some things may be beyond your current frame of reference but are not necessary for the case analysis.  Conversations will inevitably flow from what is bracketed

The stories I gave my class that year were all stories about children being removed from or returned to communities.  The ones I used are here: Buffalo ChildThe Girl Raised by a Grizzly BearThe Caterpillar; and The Boy who was Raised by Wolves.

Time was of course an issue, and was best spent by giving them lots of time to struggle with pulling the principles out of the stories, making sense of them, and seeing the connection to our work in the course.  I used my time moving from group to group, posing questions and working to keep them on track.

Truth and Reconciliation. I concluded class by offering some space for reflections from their briefings, and then by returning to the broader work of the TRC, and our work in family law.

II.  Sex-O

Sexual Orientation and the Law (Law 357, lovingly called Sex-O by the students) is an upper year seminar, theoretically taught every other year.  The class is twice a week for 90 minutes, and the methodology is one that draws heavily on embodied pedagogy.  The first class of the week is a discussion class, readings based, and the second class puts those readings into action.

In my 2017 seminar, I chose to import the lesson plan that I had used in family law with slight modification.  This class on Indigenous stories was the third of three classes at the outset of the course aimed at locating ourselves in place, space and law and to recognize the connections between Indigenous laws and colonial constructions of gender.  The first week of the course including an adaptation of Pulling the Weeds – by Suzanne Lenon, Kara Granzow & Emily Kirbyson shared on this blog, and the second week included a discussion of colonialism, Indigeneity and queer legal theory, to set up the TRC exercise.

So, similar to family law, this exercise sat right at the outset of the course so that students would be thinking about and drawing on these materials through their work Reading outline Sex-O 2017.

The reading for the week including the following: SexO readings 12-09-17 and so the students were asked to come to class with familiarity of the ILRU methodology.

Introduction. I did a similar introduction as I had in family law, but with the focus on the role that colonialism plays in our understanding of sexuality, or as authors Drs Sarah Hunt and Cindy Holmes articulate “further our reflections on decolonizing a queer praxis.”  This was supplemented by the students having already spent a whole class engaging with the theoretical materials.

We then watched one of ILRU’s videos — Indigenous Law Gender and Sexuality to set up our conversation about how gendered power dynamics shape legal interpretations, and in particular how Indigenous ways of knowing and being are engaged in our collective effort in queering law.

Briefing a case. I then, similarly, broke them into groups of 3 or 4 (smaller groups due to the smaller seminar size), set up the ILRU exercise, and then gave them each a story that I chose from the Gender Inside Indigenous Law Casebook.  The stories I chose were: Hu’pken (Secwepemc); Sn’naz (Secwepemc); Hairy-Heart People (Cree); Swan and Some (Dane-zaa) and Dog Peed on Arrow (Dane-zaa).

They then similarly worked with the ILRU case brief (as shown above) with the additional questions drawn from the work of Dr Emily Snyder:

Questions about legal processes: What are the characteristics of legitimate decision-making processes? Who is included? Is this gendered? Who are the authoritative decision makers?

Legal responses and resolutions: What are the responses? Do these responses have different implications for women and men?

Legal rights: What should people and other beings be able to expect from others? Are any of these expectations gendered? Are certain rights overlooked?

General gender dynamics: Are both women and men present in the material? What are they doing or saying? In what contexts do women and men appear?

Conclusions. Again, time was not our friend, but after considerable engagement, we came back to the large group to see what they had pulled out of the stories, and how the primarily gendered issues translated into questions of sexuality.  We then stepped back to the work of the TRC as a whole, and concluded by thinking through, collectively, how knowing and continuing to engage with the TRC, particularly the history and legacy of residential schools, matters to our study of sexual orientation and the law.

III.  Self-reflection

I think to really know how these classes worked, you have to ask the students.  I hope that some of them will take up the comment features from this blog and let you all know. From my perspective as an educator, they worked really well.  First, issues of Indigenous ways of knowing and being grounded both of those courses from the outset.  And that really seemed to matter; visible in classroom discussion and in their essays and projects.  Second, engaging with Indigenous stories is something that our students do in various places at UVicLaw.  And there the work often does double-duty, demonstrating the significance to Canadian law of the resurgence and revitalization of Indigenous legal orders, on the one hand, and showing how all law is stories, on the other.  Third, the embodied nature of the exercise — the reading aloud, the sketching out a case brief on flip chart paper, the vulnerability of it — seems to affect a power shift in the class.  Right from the outset these students are talking to each other about things that really matter, and doing that with respect, creativity and openness.  Modelling dynamic learning can free students to try different evaluative methods themselves.

Finally, as a non-Indigenous instructor, doing this work can be terrifying at times.  The intergenerational trauma that some of our students live with, and the gravity of bringing issues of cultural genocide into law school teaching, is huge.  But my parting words would be that it so important to try.  To self-educate, definitely, but to not shy away from exercises, like this one, that with a little bit of set-up can wreak huge benefits.

I have tried to include all of my materials here, but super happy to talk more about this with anyone who wants to give this a go, too.

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“The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

gillianIn the 2014-2015 academic year I revised the methodology of my first-year Constitutional Law class to centre “problem-based learning.” And the problem that I chose to ground the year, federalism, Indigenous laws, and the Charter, was the “problem of prostitution.”

If anyone is interested in thinking through what a shift to problem-based learning might look like, I have lots of resources from my year that I am super happy to share. Just email me at gcalder@uvic.ca. It is the best thing I have done to challenge my own perceptions and teaching in a long time. Here are a couple of articles about problem-based learning that I found helpful when I started my own rethinking:

  • Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298
  • Shirley Lung, “The Problem Method: No Simple Solution” (2009) 45(4) Williamette Law Review 723-766.

However, what I want to say briefly here in the context of how law schools should respond to the TRC, is that one of the problems I have faced in teaching Constitutional Law is the volume of materials, but also the silos. I have tended to teach the course in three separate chunks, and evaluate those three chunks separately as well. What I found this year using a thick, messy, political, economic, social, ethical and multi-legal problem like “prostitution” was that the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

And in particular, the issue of who is affected by the sex-trade and the correlation between colonialism, murdered and missing Indigenous women and girls, and law’s engagement with prostitution, was something we returned to throughout our learning process. And while there are Indigenous issues in federalism and in the Charter, here the engagement and the learning was deep-learning. And, as a result, discussion in class and work, collaborative projects and work on evaluations engaged with questions of colonialism in a way that I have never experienced teaching Constitutional Law before.

The resources that I drew upon in teaching the Indigenous component of the course included:

I also had Guest lectures by  Val Napoleon, John Borrows.  The students also listened to this phenomenal podcast, by UVic law grad (and singer-songwriter) Tara Williamson (please use with acknowledgement to Tara and to UVic Law): https://www.dropbox.com/s/81jgawpfl7h5zx1/Podcast%2014%20intro%20to%20s7.m4a?dl=0

I also tried to challenge the pedagogy used in each class, with an aim to use movement, the visual, art, and the diversity of learning styles of my students, to connect their learning and their emotions.

The questions that students were asked to answer as part of their evaluation included:

 Question one: Amongst other goals, this section of the course has asked you to think about the relationship between Indigenous Laws and the Canadian Constitutional order. To explore this relationship you are asked to choose one source (for example, an article, a book, or a film) that is external to our course materials and to offer a critical review of that source. Your analysis should draw on at least three of the sources our course has addressed with the goal of examining the tensions that exist between Indigenous and non-Indigenous legal orders. Do we truly live in a multi-juridical country? What happens when one set of legal orders can’t hear the other? How does your source contribute to a shifting understanding of law?

An example of an external source might be: Louise Erdrich’s novel The Round House (New York: Harper Collins, 2012); Christy Jordan-Fenton and Margaret Pokiak-Fenton’s children’s book Fatty Legs: A True Story (Toronto: Annick Press, 2010) or the Inuit film, Atanarjuat (The Fast Runner), Zacharias Kunuk, 2001.

Question two: Amongst other goals, this section of the course has offered you the opportunity to critically engage with s. 35 of the Constitution Act, 1982, primarily through the cases that have interpreted that provision. In the SCC’s recent Tsilhqot’in Nation v British Columbia, 2014 SCC 44 decision, the Court held as follows:

[42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

With attention to at least three sources that we have studied this term, how is the Court’s concern with a “culturally sensitive approach” reflected in Canadian law? Is the Court moving the jurisprudence in a new direction? What underlies this critical aspect of the judgment? What obstacles or concerns do you foresee with this approach?

 Question three: Amongst other goals, this section of the course has asked you to think about the role that colonialism plays in the “problem of prostitution.” Indeed, an argument of our course is that that the passion and creativity of the Idle No More movement has brought legal issues to light that might have otherwise lain dormant. With attention to at least three sources that we have studied together this term, what does looking at “the problem of prostitution” through the lens of the Idle No More movement bring to the surface? What systemic issues inherent in our study of the sex trade this term are elucidated through a colonialist or postcolonialist lens? How have the stories of Indigenous women been reflected, or not, in our journey through Constitutional law to date?

But significantly, issues of Indigeneity, colonialism, and being a residential-school survivor, were issues that were part of the student’s final evaluation, a factum that was to either challenge or defend Bill C-36. Teaching law in an integrated way, centring problem-solving as the primary skill, can lead to unexpected results.

I have never seen this kind of quality work from students in a first year class before, it was exhilarating and humbling to be part of – and I think there is lots to learn for how we approach the challenge the TRC recommendations set for law schools.

Idea for First Year Criminal Law?: Teach a class on R v. Kikkik (1958)

118136408_640If you are looking for a unit to add into your Criminal Law class, I would recommend taking up the 1958 case R v. Kikkik.

This was the high profile trial of an Inuk woman who was charged with murder (for killing her brother-in-law, who had killed her husband), and with child abandonment (for leaving two of her children behind when she tried to walk the 45 miles to nearest trading post).  These events took place in the winter of 1958, after the Ahiarmiut had been ‘relocated’ from their traditional lands at Ennadai Lake to Henik Lake (to a place hundreds of miles away, where there were no caribou, and where many Ahiarmiut starved to death).

I don’t think the case shows up in any of the mainstream criminal law texts, but was one of the big showtrials of its time (covered by TimeLife).  As a result, there is lots of material to drawn on for teaching!  Part of what it makes it a great case to teach, especially in first year, is that there is a documentary film you can use!  In what might be the only example I can call to mind, the documentary is made by Kikkik’s daughter, Educator Elisapee Karetak (who was a baby at the time). [Elisapee was also a cultural advisor to the first Akitiraq Law Degree Program]

I use this film/case in the very first few weeks of the class.  I don’t have them do any mandatory readings, i just arrange for them to see the film.  I have tried both having a lab session (in which they watch together), and simply letting them watch it on their own time.  There are different advantages to each approach.  The film is accessible on Vimeo (“Kikkik” https://vimeo.com/18742945.

After they have seen the film, we spend class time talking about “the facts” (as seen by the criminal justice system), both the successes and limits of that system, and then work outwards in layers to explore what other harms are present, what is not visible within the Canadian justice system, and the after-effects into the future.

Though it is early in the term, the case is memorable and carries its weight, so that we can return to it throughout the year (much in the way that some scholars use the Marshall inquiry).  My experience is that the first few week are not “too early.”

What you get is:

  • a really compelling narrative (which makes it accessible for students)
  • a rich text (which means  you can work with it on many levels, which means it works both for students with more and with less prior education/knowledge/experience with the intersection of crim and colonization)
  • both historical distance (which makes the case somewhat easier to process), and an active layering into the present (which makes visible connections between past and present)

I have been using the film/case in my criminal law class (for the past 10 years) and have found the case to be both powerful and pedagogically awesome.  (I should also say that i have taught it in different ways in different years, and have learned new things from it each time…. i think this is a great case for people wanting to start to take small steps in shifting their materials, and it would work no matter what case book you were using)

Pedagogy Notes:

  • it is a fantastic way of including the history of arctic relocations, and of the “e-number system”
  • it is a case that the judicial system “got right” (people can feel good about the possibility that the judicial system can get it right… but can also see why ‘getting it right’ is not enough)
  • It makes visible the ways that the larger systemic harms suffered by the Ahirarmiut were completely invisible to the Canadian judicial system (that is, criminal law doesn’t easily make visible the harm of relocation itself). This weaves itself back into the materials throughout the year
  • it raises questions of gender, necessity, self-defence, mothers-and-babies-in-jail, child apprehensions, right to counsel, confessions, translation, juries, judges charges to juries, media coverage of judicial system, etc etc.  [especially if you use the transcript].  There are many ways you can easily refer back to the case throughout the year in ways that support better knowledge about the history of Aboriginal/Crown relations.
  • Because this case was a HUGE show trial in the 50s (made the world stage), there are lots of materials you could draw on: The trial transcript, media coverage, sculptures, films. This means that the case/film works well with a variety of different learning styles

OTHER COMMENTS ON RESOURCES:

  • UVic has a copy of the trial transcript (for the murder trial) in our law library. In an upper year legal theory course, the students read the whole transcript.  I don’t do that in first year crim, but there are some parts of it that are really excellent for teaching with! I made a PDF copy for the students, divided into two PDFs
  • If you like to use images in class, here is a link to the powerpoint I sometimes use.  Feel free to modify, extend, alter, make it your own, etc.
  • If someone wanted to read more about it, I wrote an article that looks at the 4 genres in which the story could be told (i don’t assign it, but it can be helpful background for someone wanting to familiarize themselves with the story, or pull things out of bibliography…or if you want to talk about genres of justice, and challenge the assumption that justice finds its purest expression in the genre of criminal law cases) 
  • there are two versions of the film.  The shorter vimeo one (link above), and a longer one that has an additional 30 minutes of footage taken after the elders had returned to the home from which they had been moved.  I really love the longer version, but it is only online in the inuktitut version (as far as I can tell).  Students find it easier to access the shorter version.  If you have time to do a larger screening, the longer one has additional material that is very powerful.

OK.   other suggestions welcomed!

Finding Resources Close to my Shuswap (Secwepmc) Home

By Rebecca Johnson

TRC Recommendation #28 says:

We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

I have been thinking about how to develop curriculum that addresThe view from my mom's Shuswap homeses this recommendation, and in doing so, have been thinking about how to make this recommendation more ‘personal’.  That is, I have been thinking about ways the recommendation could be rooted in my own sense of “home”.  What would it mean to find resources that speak to my own embedding, as a Settler-Canadian, in these histories?  What would it mean to see MYSELF in this history?  And so, I started to think about resources that are linked to my ‘heart-home’:  the Shuswap Lake.

Here are some pieces I have been thinking might work together as a pod of resources, one which is located in BC (given my location here), and which is located in the Shuswap (Secwepmc territory)  where I spend my summers.

I thought it a good place to start because I have spent so much of my life there, I deeply love the land there, and grew up (like many Settler Canadians) knowing NOTHING of the real history of the place, or of the law of the Secwepmc, or of this history of Setter/Secwepmc interactions.

Partly, I wonder if one way for many of us in law schools to start doing this work is to start it from the place that we are AT.  That is, to try to gather together the resources that might enable us to really teach our students in the spaces that they learn… so they begin to see how the various stories of law are all around them in a very concrete way.

I do not, of course, think that is the ONLY way to approach the work, but I do wonder about the ways the work might feel if we take seriously the ways in which we too (i am presuming a settler ‘we’ here, but am open to conversation on that point) are living on particular places, and might benefit from taking seriously the histories and resources of those places.

And so, here is a first intervention, and I REALLY welcome ideas and feedback about resources, stories, documents that might work together to think about law school curricula linked to Secwepmc territory.

so… a starting place might be basic information about the territory, told from the perspective of current indigenous political communities.  As a starting place, it might involve some attention to using the names indigneous communities use for themselves.  So… if not ‘drop’ the Shuswap, then at least think about also usins Secwepmc (or at least beginning the discussions of naming).  And so, maybe begin with some links to how the communities describe themselves and their lands.  Maybe a link like this? http://tkemlups.ca/our-land/

Might be useful to start with questions about land and governance.

  • Memorial, to Sir Wilfred Laurier, From the Chiefs of the Shuswap, Okanagan and Couteau Tribes of British Columbia. Presented at Kamloops, B.C. August 25, 1910 

http://shuswapnation.org/to-sir-wilfrid-laurier/

Then, what about histories of residential schools?  In this case, we have a wonderful memorie written by a student who attended the Williams Lake residential school.

  • They-called-me-number-one-250x386 Bev Sellars, They Called Me Number One.

This book came highly recommended by friends.  I just finished it last weekend.  So much in there to talk about and discuss.  Here is a link to a short review of it:

https://www.alumni.ubc.ca/2014/events/book-club/they-called-me-number-one-by-bev-sellars/

The book is full of material that could link in easily to any number of courses and topics.  It deals with language, parenting, land, education, torts, crime, politics, policing, governance, religion, hope, despair, etc.

There are some very obvious links to mainstream curriculum.  For example, the Principal at the Williams Lake Residential School was Archbishop O’Connor (familiar in the criminal law curriculum with respect to the right of an accused to have access to the private counselling records of a ‘complainant’ in a sexual assault case).   I found it interesting to re-think/teach the story of O’Connor against the context of the work done in Bev Sellar’s memoire.

  •  R v. O’Connor

          http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1323/index.do

Another recourse to link in could be this:

  • Report on the Caribou-Chilcotin Justice Inquiry 1993

http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/149599/cariboochilcotinjustice.pdf

Here, there is a chance to look at the Report of an Inquiry, and in this case, a fairly short report.  Nicely, Bev Sellars was involved in the Inquiry, so her memoire provides an occasion to ask questions about what does or does not end up in the Report of the Inquiry itself.

  • Links to the present might include exploration of the 2010 BCLA intervention in on-going conflict between RCMP and the Williams Lake Community (which gives an opportunity to explore how contemporary moments of conflict find roots in the deeper histories)

https://bccla.org/news/2010/09/conflict-between-rcmp-and-aboriginal-community-in-williams-lake-must-be-investigated-and-resolved-says-bccla/

Well… this is just a start.  Would love to hear ideas from others about how these pieces might be pulled together (or substituted with others) in the interests of moving towards TRC2015 Recommendation #28