Reconciliation’s uphill battle: Indigenous legal education

Bristling. Resistance. Defensiveness. Denial. Guilt. These are some of the terms used to describe responses to the efforts being made to answer the Truth and Reconciliation Commission’s Calls to Action — and they’re not limited to the law school setting. From Ontario’s tumultuous journey with the Statement of Principles to British Columbia’s recent announcement that all lawyers in the province must complete cultural competency training, there is now also emerging concern over how effectively law schools are teaching colonial history, the concepts of privilege and power dynamics and how the legal system plays a role in enforcing and perpetuating them.

The TRC’s Call to Action #28 is relatively clear in theory. It recommends at least one required course within the law school curriculum to include instruction on Aboriginal-Crown relations, treaties and Indigenous rights, Indigenous law and the United Nation’s Declaration on the Rights of Indigenous Peoples. It also calls for a skills component that engages with the material and mandates training in “intercultural competency, conflict resolution, human rights, and anti-racism.” 

In practice, law schools across the country have adopted various initiatives to address this, from unofficial undertakings such as increased exposure to Indigenous culture through practices such as traditional blanket exercises, interactions with Indigenous elders and taking part in camps to official changes such as the called-for mandatory courses and integration of relevant material across the curriculum. While these efforts should be applauded and encouraged, the question the legal community is grappling with now is how to effectively teach these things.

“I think that class is absolutely needed; however, I would worry that, when you bring a group of law students through this with no prior history in anti-racist education, they have no tools to understand what’s being given to them or to process their emotions,” Bear, who is also a student representative with the Indigenous Bar Association, says.

Maggie Wente, a partner at Olthuis Kleer Townshend LLP in Toronto, says one of the critical issues is the people introducing the subject matter to law students aren’t necessarily competent to teach those subjects. She attributes this shortcoming to a stubborn belief that professors can’t be told how to teach their classes.

“I believe in academic freedom, but I also believe you have to be responsible and knowledgeable about the subject matter you’re teaching — or you don’t have any business teaching it,” she says. “If you really want to do the hard work of undertaking teaching about Indigenous issues, you have to some way inform yourself about what’s going on.”

A good example Wente cites of what happens when issues are engaged out of context is the controversy over a December memo-writing assignment for first-year law students at the University of Toronto, which involved a case that portrayed hypothetical Indigenous people in a stereotypical way. 

During the controversy, Wente — a 1998 U of T graduate herself, who notes there was a similar uproar at that time over residential school subject matter — says she saw people continuing to “use the thinking that they are equipped to answer those kinds of questions without any background knowledge and that they shouldn’t have to ask themselves the hard questions,” which she says is irresponsible whether you’re a lawyer, law student or professor. 

“It’s just a microcosm of the whole national arrogance about being able to solve Aboriginal peoples’ problems without knowing anything about them,” Wente says. “The arrogance of thinking that you can answer the question without knowing anything about the problem is the problem — and it’s always been the problem. If we don’t do the work, the same problems will keep arising again and again.”

For many advocates for Indigenous education and reconciliation, legal education must overcome this arrogance and recognize the value of Indigenous peoples’ past, present and future. One of the key first steps for law schools is to ensure they have Indigenous faculty and staff and that the environment is a welcoming one. Until there are Indigenous peoples at every level of the law school environment, there’s “probably not going to be a required course or it’s going to be a soft and fluffy offering,” says Angelique EagleWoman, visiting professor at the Mitchell Hamline School of Law in Minnesota. 

“You can’t expect to teach about intergenerational trauma and not have a wide range of responses from people who are hearing it for the first time or it’s their lived experience,” says EagleWoman, who was the first Indigenous law dean in Canada during her time at Bora Laskin Faculty of Law at Lakehead University. “You’ve got two different types of students — hopefully — in that classroom and you have to be able to address what they’re both understanding from the material and guide that understanding. That does take a high level of understanding of the material and also where Canada is at this moment.”

While there’s an appetite to increase Indigenization generally — from law schools to lawyers working in the burgeoning area of Aboriginal law to companies looking to be more inclusive — there is a trend that troubles advocates to slap an Indigenous word on some letterhead or throw in an exam question that mentions Aboriginal people and call it reconciliation. Some Indigenous people view the term as window dressing when it’s used by those unwilling or unprepared to do the hard work of changing the structure and pedagogy of society — and the institutions within it, such as law schools — to be more inclusive of Indigenous culture.

While it’s positive there’s a societal value among some people that reconciliation is important, efforts among those not well versed in Indigenous issues can miss the mark — which in turn can lead to tension where people feel they’re trying but are blamed for not doing it right. Wente has some sympathy for those who are at least attempting to do this work — but her sympathy is limited when it comes to ignorance.

“Read some books and get some Google. There are hundreds and hundreds of works out there about Aboriginal peoples’ experiences, hopes, dreams and aspirations,” she says. “It’s not that hard.”

Bruce McIvor, principal of First Peoples Law Corp. in Vancouver, taught the University of British Columbia’s mandatory first-year course on Aboriginal and treaty rights last year and agrees it’s an advantage if the person teaching the course is Indigenous themselves, as they bring their personal perspective and experience, which helps students connect with the subject material.

Using his own experience and opinion was the approach he took to teaching the course, and while quite a few students were interested and receptive, there was a sense some of them would have preferred not to be there. But that reaction, which he predicts is common in classrooms across the country, is to be expected — and even desired.

“It’s a good thing if it makes them a bit uncomfortable and challenges some of their preconceptions,” McIvor says. “It can be a bit challenging teaching the course because of that, but more of those types of challenges are what we all need to better educate lawyers.”

Increased exposure to these issues starting in elementary school, perseverance with the subject matter in law school and the continuing education and training of lawyers already practising who didn’t have the benefit of these law school classes — it all needs to happen simultaneously right now if there’s going to be meaningful change, says EagleWoman.

“That’s why I talk about taking a seven-generation view on this — everyone has to do their part all along the way,” she says. “These law students are at the beginning of this effort; this won’t always be the reaction in the classroom. This is a necessary transition period.”

Although Bear acknowledges his school’s “great efforts” to honour the call to action and understands it’s difficult for law schools to predict these outcomes, having actually been through the course, he developed “extreme concerns” about whether that work is being done in an effective way and what his experience means in the larger context of similar courses being taught across Canada.

“I felt like it built up a lot more frustration and contention between Indigenous students and their view on Indigenous people,” he says, noting there is often a disparity among students as many who attend law school are not underprivileged or disadvantaged in the same way as an Indigenous student or other minority might be. “Unfortunately, law schools attract some very stubborn people when it comes to being open to other races — it can be a difficult space to train people to be culturally sensitive.”

Bear brought his concerns forward to the University of Saskatchewan and has been placed on a committee to help shape the course for next year. His recommendation is to split the subject matter, with the initial course broaching the subject of anti-racism education generally and retaining the Indigenous-based learning principles portion for a later time.

“First of all, they need to learn — or relearn — what racism is and learn tools for how to deal with these things in law before Indigenous peoples are used to teach them, because it’s unfortunately not a good experience,” he says. “It’s difficult to try and teach students to be anti-racist when they already have so many built-in prejudices against Indigenous peoples from when they’re young. So, when Indigenous people are being used to open their eyes to anti-racist perspectives, I felt as an Indigenous student that, unfortunately, often, my culture was on display and once again our identity is vulnerable to criticism and judgment.”

To the point of how needed these courses are, many lawyers leave law school believing Canadian law is traceable back to the 1867 Canadian Constitution, when, in fact, Indigenous people have their own legal orders that predate the Constitution, predate colonization and continue to exist today. Without law students, lawyers and judges understanding, appreciating and making room for the fact that Canada consists of three legal traditions, there will continue to be disrespect for and resistance to these matters, say advocates. Giving law students exposure to the perspectives of different cultures and an increased ability to recognize the limitations in the law when it comes to race, class, sex and gender and access to justice — that would be doing the next generation of lawyers and the Canadians who will work with them a great favour.

“Education is an important component of reconciliation — as lawyers there’s a responsibility to understand these fundamental, historical and legal principles,” says McIvor. “Particularly when you’re teaching Aboriginal law, you need to explain these are historical, contemporary, personal issues — and if you don’t appreciate that you won’t be able to provide the best service for your clients.”

Irrespective of reconciliation, the reality is that Indigenous law has boomed in Canada. As it stands, there is almost no area of law that doesn’t overlap with Indigenous law in some way. Setting aside moral obligations to know and understand the true history of the country, a legal education that did not include Indigenous law in its curriculum is arguably incomplete.

“Mandatory means significant, important and core — and that’s proper respect for this area of law,” says EagleWoman. “If you say contract law or property law isn’t mandatory, what kind of lawyers are going to go out into the world? Why shouldn’t Indigenous law be mandatory?”

All lawyers should be competent in basic issues when it comes to Indigenous people “because when you’re working in law, you’re going to work with them eventually in this country,” says Bear.

It can be frustrating for Indigenous clients when they hire a lawyer and it’s obvious there is no background knowledge and no appreciation of where the client is coming from. General knowledge is a good start, but practical knowledge of Indigenous people or people who’ve experienced trauma, for example, those are the kinds of skills law students should be working on, says Wente. Though some professors push back on the idea that law schools are professional training programs, she argues that — along with articling and time as a junior lawyer — that’s exactly what legal education is.

“In terms of training lawyers generally about Indigenous issues, there’s not many subject matters where there’s no Aboriginal component to be learned or understood from that,” she notes.

Wente adds that, when it comes to potential hires at her firm, which works with Indigenous communities, she’s not going to put anybody who doesn’t know about the history and the current situation, who doesn’t have the ability to speak with people who have experienced trauma, in front of an Indigenous client.

The key to reconciliation at all levels of the legal community is honest engagement with the issues, an open dialogue among all parties and — most crucial of all — creating and maintaining the space for Indigenous people to voice their opinions and solutions.

“Respect, anti-racism and appreciation of other cultures as values — that has to guide these efforts if there’s going to be meaningful change,” EagleWoman says. She recommends The Guide for Lawyers Working with Indigenous Peoples — a joint project of the Advocates’ Society, the Indigenous Bar Association and the Law Society of Ontario — to all practitioners as a solid starting point to increasing their understanding, noting that there’s always room to become more culturally competent.

Whatever comes of the TRC Calls to Action, however they’re implemented and however reconciliation is ultimately reached, the hope is that in the end there is real change made in the minds of the lawyers who will make up the future legal sphere.

“I had a client tell me once, if reconciliation makes you feel good it’s probably not working,” McIvor says. “It’s got to make you feel uncomfortable as a non-Indigenous person. So, engaging on these issues may be difficult, but I think lawyers have an important role to play in that conversation.”