How can the legal profession advance reconciliation?

Historically, the Canadian state has used the law to oppress and tyrannize Indigenous people. But lawyers today can redirect that power in a way that bolsters justice and equality

The treatment of Indigenous people in Canada — which continues to deprive them of land, culture and rights — amounts to a crime against humanity. For the most part, however, it’s been a lawful crime. True, it sometimes happened in spite of Canadian statutes and precedents, but it has just as often happened in accordance with them. Advocates, judges and legal bureaucrats have been present at every moment, giving procedural cover to policies we now consider genocidal.

These wounds won’t easily heal. In 2018, the Law Society of Ontario, in partnership with the Advocates’ Society and the Indigenous Bar Association, published a guide for lawyers on how to represent Indigenous clients. The document paints a bleak picture: “Indigenous communities may hold a level of distrust towards the legal system as legal institutions have been used historically as a means to colonize Indigenous lands, peoples and communities.”

Examples of state-sanctioned colonization are numerous. Following the Northwest Rebellion of 1885, Hayter Reed, a licensed lawyer who was at the time the assistant commissioner of Indian Affairs, imposed a pass system in the Prairies, confining Indigenous people to reserves unless they obtained a permit to leave. The policy never became official law, but Reed leveraged his connections in the federal government to ensure that it would tacitly permit the practice.

In 1888, lawyers representing the Crown successfully argued, before the highest court in the country, that Indigenous people were merely occupants of their own lands and could have that occupancy revoked at any time. And, for nearly four decades starting in the early 1950s, provincial child-welfare services across the country systematically kidnapped tens of thousands of Indigenous children and placed them in white foster homes, a campaign now known as the Sixties Scoop. This was not in violation of the law but in compliance with federal legislation from 1951, which gave the provinces jurisdiction over Indigenous child welfare. Is it any wonder that many Indigenous people in Canada are wary of both the legal system and the professionals who represent it?

Still, this isn’t the whole story. Drew Lafond argues that, to really know one’s history, one has to look not only at bad-faith actors but also at people who used their credibility and expertise to combat societal wrongs. Lafond is a partner at the Saskatoon office of MLT Aikins LLP, where he practises corporate and commercial law. He also serves as the president of the Indigenous Bar Association in Canada, is a citizen of the Muskeg Lake Cree Nation and is of Secwepemc descent from the Simpcw First Nation. In law, he says, a list of trailblazers would surely include the outspoken lawyer Samuel Hume Blake, who, in 1908, said that the number of preventable deaths in the residential-school system brought the Canadian state “into unpleasant nearness to manslaughter.” A list would also include Roger Carter, the late dean of the law school at the University of Saskatchewan, who, in 1975, founded what’s now called the Indigenous Law Centre and helped bring hundreds of Indigenous lawyers into the profession. Lafond also points to Frank Calder, the Nisga’a chief and B.C. cabinet minister, who, in the early 1970s, brought a landmark case establishing that Indigenous people could make legal ownership claims over unceded territories that they had historically occupied.

To be a lawyer today, therefore, is to inherit a mixed legacy. On the one hand, it is to align yourself with a system that has oppressed, robbed, terrorized and killed Indigenous people. On the other hand, it is to master a skill set and body of knowledge that can help rebalance the scales of justice. (Indeed, the state has long understood the activist power that lawyers can wield. When, in 1927, the Mackenzie King government amended the Indian Act to forbid Indigenous people from freely retaining legal counsel, it was backhandedly acknowledging that the law could be a tool of decolonization.)

So how can a contemporary lawyer actively contribute to reconciliation? The answer is too long and complicated for a single magazine article. But this story at least offers a place to start.

1. Acknowledge the role that lawyers have played in colonization.

In theory, the Indian Residential Schools Settlement Agreement should’ve been a major step toward reconciliation. In May 2006, the Assembly of First Nations and other Indigenous groups struck an accord with the government of Canada and various Christian churches to compensate residential-school survivors. All survivors were entitled to a lump-sum payment, but additional funds were available to those who’d been abused in the system or had experienced adverse health effects or employment difficulties as a result of residential-school trauma. In the years to come, it would fall to lawyers to file the claims and adjudicators to assess their veracity.

The settlement process was successful only in the narrowest sense of the word. In 2020, the National Centre for Truth and Reconciliation — an archival organization at the University of Manitoba dedicated to “learning and dialogue where the truths of the residential school experience will be honoured and kept safe for future generations” — released a scathing report that outlined the legal profession’s many failures. In anticipation of and after the 2006 agreement, lawyers descended on towns and cities near Indigenous communities, sometimes holing up in expensive hotels: the kind that, in the past, had refused to admit Indigenous guests. Information about the process was mostly available in English or French — or, really, in abstruse legalese. Translators who spoke Indigenous languages were retained occasionally but often thoughtlessly, with little attention to regional dialects.

Survivors had to tell their stories repeatedly, often in the face of disinterest or skepticism. Rather than allowing clients to work slowly through traumatic memories, lawyers often told them, impatiently, to focus on the actionable parts — mainly sexual abuse — or to provide consistent evidence of mistreatment, as if a traumatized 10-year-old might reasonably be expected to have taken contemporaneous notes.

In theory, the goal of the process was to deliver an equitable financial settlement. But sometimes survivors were denied compensation for reasons that felt oddly circumstantial. People who were abused while being transported to a residential school — rather than at the school itself — were deemed to have invalid claims, as if the location of the abuse was somehow pertinent. Even when settlement claims were honoured, survivors felt that they’d been poorly compensated not only for the initial trauma but also for the re-traumatizing ordeal of the settlement process. The legal representation was, on more than one occasion, incompetent. According to the NCTR report, some survivors conducted “their own research on records from the residential schools, even though they understood this to be the lawyers’ jobs.” Other survivors had stories of “legal counsel losing their files.”

To call this justice would be an exaggeration. To call it reconciliation would be an outright lie. “It was observed,” the NCTR report noted, “that the . . . hearings were operated akin to residential schools themselves, where Survivors were taken from their communities, brought to buildings that were like compounds, victimized by re-telling their stories in a culturally unsafe manner, and then returned to their communities without support.”

Jonathan Rudin, program director of Aboriginal Legal Services, an Ontario organization that supports Indigenous-led justice, argues that the legal profession still hasn’t fully absorbed the lessons from this episode. For Rudin, the most important thing lawyers can do is embrace humility. This means acknowledging that, for all your training and expertise, there’s a lot you don’t know, particularly when it comes to Indigeneity.

In fact, you might not even know if your client is Indigenous. “Indigenous people can have European accents or names,” says Rudin. “You can’t assume that a client will mention their Indigeneity, because they may not think it’s relevant or helpful.” The best way to find out is to get over your hesitancy and ask. When doing so, Rudin recommends using the word “Indigenous,” rather than the phrase “First Nations,” which doesn’t conventionally refer to Métis people or Inuit.

When clients disclose that they are Indigenous, this implies a higher duty of care. You have a responsibility, for instance, to work in accordance with trauma-informed principles. (The Canadian Bar Association offers training and online resources on this topic.) “If you ask people about their lives,” says Rudin, “you must be prepared for what they might tell you.” Listen to clients’ stories fully and sympathetically, not just as a means of getting pertinent information but also as a means of honouring a complex human experience. Try to minimize the degree of re-traumatization, while acknowledging that some amount is inevitable. And exercise discretion. “What a client shares with a lawyer or a Gladue writer,” says Rudin, “is not necessarily what they would want to share in open court.” (The Gladue principles, originally outlined in a 1999 Supreme Court decision, now compel judges to consider how a defendant’s Indigenous background or experience of colonization might be a factor when it comes to parole, bail, sentencing and other court decisions. Gladue writers prepare a case-specific report, presented to a judge in advance of a hearing, to explain the Gladue factors at play.)

The profession has not yet taken Rudin’s advice. Survey data suggests that lawyers spend less time with Indigenous clients than with non-Indigenous clients. That disparity likely helps to explain why — according to a report from the Public Prosecution Service of Canada — Indigenous people are more likely than others to be wrongfully convicted, to enter false guilty pleas or to be left in pre-trial detention without a bail hearing. (No doubt, this culture of neglect also affects Indigenous clients seeking support in non-criminal matters.) If your client is Indigenous, therefore, you have a moral and ethical responsibility to be extra attentive, in part to compensate for the general lack of attentiveness that lawyers still show the Indigenous community.

Rudin has a message for opposing counsel, too. The legal system is adversarial, but it shouldn’t be hostile or discriminatory. In a criminal proceeding, he says, a Crown should never directly challenge a person’s claim to Indigenous identity. Indigeneity can be defined in a variety of ways, not all of them narrowly legalistic. A prosecutor can argue that “there are no Gladue factors at play” in a given case, he says, without questioning whether a person is “really” Indigenous. And no lawyer, on either side of a courtroom, should ever say that a person “attended” a residential school, since most people were taken by force or otherwise coerced into going.

A lawyer might reasonably worry that there’s a great deal to know on this subject and that one can’t be expected to say all the right things 100 percent of the time. But Rudin contends that advocacy doesn’t have to be perfect for it to be good. A client is likely to tell you what they need from you — and to politely correct your missteps — if you indicate, through your language and conduct, that you are the kind of person who listens.

Slow down, pay attention and demonstrate humility. This will invite the kind of lawyer-client interactions — respectful, restorative, even reconciliatory — that were sorely absent during the residential-school settlement process. “Two-way respect is an important teaching in many Indigenous cultures,” says Rudin. “It should be an important teaching in legal culture, too.”

2. Embrace legal pluralism.

In 1984, police arrested Ronald Sparrow, a Musqueam Band member, for fishing in the Fraser River Delta area with a net that exceeded the permissible size under his licence. The Musqueam community defended the charges, in a case that eventually landed before the Supreme Court of Canada. In 1990, the court determined that Sparrow’s arrest infringed on his constitutionally protected rights. The decision relied on Section 35 of the Constitution Act of 1982, which protects Indigenous rights. Because the Musqueam people had fished in the Delta area for centuries, and because they had never ceded their fishing rights, those rights were, by default, still existent and not subject to undue government interference.

The significance of the decision went beyond fishing. In its ruling, the court acknowledged two key points: first, that long before settlers arrived on the continent, the Musqueam had entered into a relationship with the land; and second, that this relationship included a set of practices and responsibilities (what Westerners might call “land-management laws”) that the Musqueam had never abandoned. In other words, Indigenous nations had inherent rights that were constitutionally protected.

The Sparrow decision is only one example of Indigenous people advocating for the right to set the laws of their own lands. Currently, there are 25 self-government agreements between Indigenous communities and Ottawa that give nations a degree of control over everything from education to land management. The federal government has also passed legislation that aims to provide Indigenous communities with some measure of jurisdiction over child and family services. (The Supreme Court will soon determine the ultimate shape of the law.)

Of course, Canada has always been legally pluralistic. Quebec has long followed the Napoleonic Code, while other provinces adhere to English common law. But today, it is becoming obvious to anyone paying attention that there are more than just two legal systems at play. Canada is not a monolith. It is a patchwork of interrelated, and sometimes overlapping, legal regimes.

Karen Drake, an associate law professor at Osgoode Hall who studies Anishinaabe law and constitutionalism, argues that a competent lawyer must be willing and able to practise in this multi-juridical environment. Drawing on the work of Aaron Mills, an assistant professor at McGill University’s faculty of law, Drake has come to appreciate the difference between Western and Anishinaabe law. “As I understand it,” she says, “Western legal orders are rooted in rights and duties” that outline what an individual can and cannot do. By contrast, “Anishinaabe law is rooted in gifts and needs.” Broadly speaking, members of a community enter into a kinship network with one another and exchange skills, resources or expertise. As Drake co-wrote in a paper, the idea is to identify and coordinate “the gifts of some with the needs of others” in a way that’s mutually beneficial to everyone.

How could this philosophy apply to a modern legal problem? Let’s say that a mining company wants to construct a mine in Anishinaabe territory. The company would first need to enter into a kinship relationship with that community. If the company offers the gift of good environmental stewardship, it has to follow through in a holistic sense by honouring its broader obligations to the kinship network and taking care of the land over time. It wouldn’t be able to skirt that obligation by relying on a legalistic interpretation of its responsibilities. “This approach is very different from an arrangement where you determine the precise terms upfront and hold people to them,” says Drake. “A kinship relationship is dynamic, organic and ever-changing.”

Naiomi Metallic, an associate professor at the Schulich School of Law at Dalhousie University who teaches Aboriginal and Indigenous law, explains that there are many ways for a practising lawyer to gain the relevant knowledge in this area. When representing an Indigenous nation, you can partner with community leaders or experts to better understand the key concepts of its legal tradition. You can dip into the ever-growing body of writing by researchers like John Borrows, Hadley Friedland and others, which identifies key principles in Indigenous worldviews and builds legal precepts on top of them. (The library at the University of Victoria has put together a guide to this scholarly corpus.) And if you’re seeking to have a career with a specific Indigenous community, familiarize yourself with that community’s language and take courses in its legal history.

This sort of work is crucial. As Metallic points out, Indigenous philosophies can be strikingly different from Western moral systems. Some Indigenous communities, for instance, might seek to redress criminality based on restorative-justice principles rather than deterrence and punishment. When designing child-protection laws, they might resist the Western obsession with the nuclear family and allow children to be raised in extended familial networks. And when establishing land-use rights, they might focus less on legal ownership and more on custodianship, whereby the land is open to those who care for it.

Or they might not. All Indigenous nations are different, and self-determination means having the freedom to decide. What’s clear, however, is that, as Canada becomes more juridically diverse, lawyers will have to adjust to keep pace. “There are numerous ways that Indigenous worldviews clash with European worldviews,” says Metallic. “To embrace legal pluralism, we have to resist the idea that there’s one kind of law.”

3. Improve lawyer training.

In 2018, Jaime Lavallee, an assistant professor at the University of Saskatchewan College of Law, started teaching a course that she called Kwayeskastasowin, a Cree word meaning “setting things right.” This was a new course, mandatory for all first-year law students and transfer students looking to graduate with a law degree from the university. It covered treaties, Indigenous legal orders, the United Nations Declaration on the Rights of Indigenous Peoples and the legacy of residential schools. Her reading list included The Inconvenient Indian, Thomas King’s irreverent account of post-contact Indigenous history, among other texts. “It’s critical to teach this class in first year,” says Lavallee, “so that students go forward with a common knowledge base.”

As a citizen of the Muskeg Lake Cree Nation who holds a doctorate in juridical science and has expertise in the area of Indigenous nation-building, Lavallee was amply qualified to teach the course. She wasn’t prepared, however, for the mid-term and end-of-term student evaluations. As she revealed in an article for the Mitchell Hamline Law Review, they were overwhelmingly negative. Students criticized her for being biased, a charge that puzzled Lavallee, since she is hardly the first professor to have opinions of her own and since many of these opinions (for instance, that residential schools were the opposite of benevolent) are the kind for which one-sidedness would seem appropriate.

Other students were angered by her approach to pedagogy. Why, they wondered, were they being asked to attend a sweat lodge? Or to participate in talking circles or smudging ceremonies? Or to practise ledger drawing, a 19th-century pictorial style developed by Indigenous peoples of the Great Plains that was revitalized in the 1960s and ’70s and is enjoying a resurgence today? As one student opined, “This class does not seem to fit well within the context of a law school curriculum.”

Which raises a couple of important questions: What does belong in a law-school curriculum? And is the status quo defensible?

In 2015, the Truth and Reconciliation Commission of Canada published 94 Calls to Action. Two pertain directly to the legal profession. One tasks provincial and territorial law societies with ensuring that all members of the profession are trained in cultural competency. The other calls on law schools “to require all law students to take a course in Aboriginal people and the law.” The profession hasn’t, as a whole, achieved either one, but it has made progress.

It’s true, for instance, that some law schools have added a mandatory first-year course on Aboriginal law. Such courses tend to focus on the body of Canadian law that relates to Indigenous people: the Indian Act, constitutional rights, land claims, the Criminal Code, child and family legislation, and environmental assessments. To Scott Franks, an assistant professor at the Lincoln Alexander School of Law at Toronto Metropolitan University, it’s important to cover such topics, which will surely be relevant to every practising lawyer when, sooner or later, their careers intersect with Indigenous issues.

But, as Franks point out, Aboriginal law is, ultimately, a subset of Canadian law. He’d like more schools to teach both the history of Indigenous people in Canada and the legal traditions of Indigenous communities themselves. “The Supreme Court of Canada requires that judges consider Indigenous perspectives when adjudicating Indigenous rights,” he says. “But counsel cannot competently communicate these perspectives to judges without having some understanding of the relevant Indigenous legal orders.”

For the fullest example of how a law school might teach such material, deans and faculty members can look to the University of Victoria. Since 2018, the university has offered a four-year program that covers both Canadian and Indigenous law. At the end, students graduate with two degrees: a juris doctor and a juris Indigenarum doctor.

Val Napoleon, the dean and co-creator of the program, took inspiration from the faculty of law at McGill University, which equips students to practise in both the civil- and common-law systems. “McGill is dealing with two legal orders,” she says. “We’re dealing with multiple.” During their first two years, joint-JD/JID students take double courses in the core subjects, learning the common-law side and the equivalent Indigenous-law side of each area. Students study, for instance, Canadian property law and Gitksan land and property law, Canadian and Cree constitutional law, and Canadian and Coast Salish tort law.

During their upper years, students complete two semester-long placements, where they work with an Indigenous community to come up with principles-based solutions to a legal problem selected by the community. (Last year, students worked with Secwepemc communities to develop a governance model in the area of child-welfare and family services.) “The goal of the program,” says Napoleon, “is to get people thinking and working across legal orders.”

UVic’s program stands as an example of what’s possible. Deans and administrators at other law schools might consider, with UVic as inspiration, how to supplement their own program offerings. (To their credit, the University of British Columbia, the University of Ottawa, the University of Alberta and Dalhousie University, among others, have also made meaningful strides in that direction.)

Moreover, practising lawyers in Canada who are hired to teach sessional courses at law schools in virtually any practice area should at least consider how they might incorporate Indigenous legal perspectives into their pedagogy, if not via their own lectures then via readings or guest speakers. To adjunct professors in that position, Napoleon has a simple message: “Look around at whose lands you’re on and see what information on legal orders those people have published.”

For both legal instructors and working lawyers who want to bolster their knowledge on this subject, there is no shortage of available scholarship. Canada’s Indigenous Constitution by John Borrows is a good book to start with. To read further, you can dig into the online resources available at the University of Alberta’s faculty of law and the law school at UVic, as well as this bibliography prepared by Metallic, the Dalhousie professor. Napoleon recommends this paper as a useful primer on the legal principles of Indigenous people in Canada. You can also enroll in one of many continuing education programs — at places like Osgoode and UBC — in Indigeneity and cultural competence.

Lavallee argues that, to properly Indigenize our legal curricula, we will have to remain open-minded about what a law degree might contain. The fact that students were put off by her course, she notes, suggests that opinions aren’t changing quickly enough. But a sustained commitment to innovative, experiential pedagogy can at least help to remedy this problem.

In her class, she wanted students to practise smudging and attend sweat lodges not only because these activities have cultural value but also because ceremonies can be an integral part of Indigenous legal procedures. Indeed, ceremony plays a central role in English common law, as anybody who has ever robed up for a court appearance or addressed a judge as “your honour” surely knows. (Lavallee points out that attendance at Indigenous ceremonies wasn’t mandatory; as an alternative, students could conduct research on a particular ceremony and write a report.) “Indigenous law isn’t something you can just do in a classroom,” says Lavallee. “You have to get out into the world and experience the culture.”

What might the legal profession look like 20 or 30 years from now? It might be an industry in which cultural competency and two-way respect are treated as baseline professional standards. Juridical pluralism might be the norm. Knowledge of the country’s colonial history may be considered foundational, while the rights enumerated in the Charter protect Indigenous people not only in theory, but in practice, too.

That vision may well come true. The current cohort of lawyers has an opportunity to put in place new norms, which will seem commonsensical to the generations that follow. When asked about the future of the profession, UVic’s Napoleon strikes a hopeful note. “The JD/JID program started in 2018,” she says, “and our first graduating class walked across the stage in the spring of 2022.” By next spring, they’ll be practising lawyers.

Illustration by Luke Swinson.