The rise of Aboriginal law

When Keith Bergner attended law school at McGill University in the mid-1990s, Aboriginal law was little more than a vague concept flickering on the horizon. Mr. Bergner recalls taking one poorly attended third-year course on the topic, an elective taught by a law practitioner rather than a faculty member. Outside of academia, the field had virtually no impact. “The ideas were there, but not the law,” says Mr. Bergner.

In the years since, a string of Supreme Court challenges, land claims disputes and clashes over billion-dollar resource developments have vaulted Indigenous issues into the spotlight and transformed Aboriginal law into the fastest-growing sector of the legal landscape. Most major legal firms in Canada now employ an Aboriginal law group and there are dozens of smaller boutique firms that focus solely on the topic.

This complex and litigious subject now forms the basis of Mr. Bergner’s own high-profile practice with Lawson Lundell LLP, a Vancouver legal firm that advises private and public-sector clients, including resource companies, in Canada’s West and North. Mr. Bergner marvels at the changes he has witnessed. “Ninety percent of the law that I deal with on a daily basis simply didn’t exist when I went to law school,” he says.

In reaction to this rapidly evolving legal landscape, and in response to the 2015 Truth and Reconciliation Commission of Canada’s Calls to Action, law schools have not only bolstered their Aboriginal law offerings but are also introducing new courses aimed at enhancing students’ understanding of Indigenous issues and legal traditions (for more on the distinction between Aboriginal and Indigenous law, see “What’s the difference?” below).

One of the TRC’s list of 94 recommendations is aimed directly at law schools. Number 28 requires that all law students take a mandatory 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.”

What’s the difference?
Canadian Aboriginal law is the body of Canadian law that explores issues related to Indigenous peoples in Canada. Indigenous law refers to the legal traditions, customs and practices of Indigenous peoples and groups.

Prior to the TRC’s Calls to Action, only two law schools – the University of British Columbia’s Peter A. Allard School of Law and Lakehead University’s Bora Laskin Faculty of Law – offered mandatory courses in Aboriginal law. Now, since the release of the TRC’s directives, many universities are responding.

“The effect of the TRC report was to re-energize people around these Indigenous issues,” says Beth Bilson, a law professor and former dean of law at the University of Saskatchewan. “I think our law school and many other schools have, over time, incorporated a lot of classes in Aboriginal law and have tried to increase the level of intercultural understanding among their students and faculty.”

This fall, Canada’s largest law school, York University’s Osgoode Hall, will add an Indigenous and Aboriginal law requirement to its JD program. All graduates of the program will have to complete at least one course that engages in a substantial way with all three of the following: Indigenous law, Aboriginal law, and professional skills that relate to serving Indigenous clients.

Signa Daum Shanks, a professor at Osgoode and the law school’s first director of Indigenous outreach, explains that the rationale behind the course is driven by a hard-edged practicality. “It’s not just about being kind. Indigenous and Aboriginal law have increased in such importance that it is unimaginable to think a lawyer can go without learning about these subjects.” Dr. Shanks, a Métis from Saskatchewan, was part of a committee that spent three years studying the role of Indigenous issues in the Osgoode JD curriculum in preparation for the new degree requirement. She is also one of three Indigenous professors recently added to the law faculty, which also plans to hire a coordinator of Indigenous and reconciliation initiatives.

UBC’s Allard School of Law, which boasts one of the highest enrolments of Indigenous law students in Canada, began its Indigenous legal studies program in 1975. Today, its syllabus includes a broad range of courses covering Aboriginal law and treaty rights, the administration of justice, Indigenous legal traditions and Indigenous legal issues. Since the program’s start, the school has also maintained an Indigenous community legal clinic in Vancouver’s Downtown Eastside, where upper-year students gain hands-on experience working in a clinical environment full-time for a term, assisting Indigenous clients in family, civil and criminal law.

In response to the TRC’s Calls to Action, UBC has created a cultural competency certificate to help students connect with the Indigenous community and reflect on the impact of Canada’s colonial legal system. The one-year program has six units and a corresponding session to explore what students have learned in a journal.

Beyond the curriculum adjustments, UBC’s dean of law Catherine Dauvergne notes, “We’re working to improve our support for Indigenous students and to ensure that Indigenous and non-Indigenous students alike understand that the development of Aboriginal law in Canada is the most significant shift in the Canadian legal landscape in our lifetimes. We now have a full-time staff person supporting learning outcomes for Indigenous students. Furthermore, the life of our faculty includes an annual Indigenous awareness celebration week and an Indigenous awareness camp for new students.”

In a related development, UBC recently opened the Indian Residential School History and Dialogue Centre. It will serve as a place for survivors of Indian residential schools to access their records, for UBC students and the public to explore the archival holdings and learn about the history and legacy of the schools through interactive technology, and for university and community members to hold discussions. Mary Ellen Turpel-Lafond, a renowned Indigenous judge, lawyer and advocate for children, was appointed director of the centre and will also teach at the Allard School of Law.

The University of Toronto’s faculty of law offers a certificate in Aboriginal legal studies and operates an Indigenous Initiatives Office (IIO) that provides a range of novel academic and experiential initiatives to all law students. The faculty also has a fellowship program for Indigenous students that provides paid internships to help them gain practical experience working in Indigenous community organizations. As well, the school has introduced Indigenous outreach programs featuring sessions with Indigenous elders, and such innovations as the Kairos Blanket Exercise, an interactive and often highly emotional workshop that illustrates the damage inflicted on Indigenous people by taking students through the historical impact of land appropriation, colonization, disease and forced assimilation.

According to IIO manager Amanda Carling, a Métis from Winnipeg and a faculty of law alumna, the initiatives have sparked a positive response, including an unexpected but much appreciated $1-million donation from philanthropists Norman and Gay Loveland to finance bursaries for Indigenous law students. The gift will help alleviate some of the financial load for Indigenous undergrads and help make attending U of T law a reality for students who could otherwise not afford it. “There is a misconception in Canada that all First Nation, Métis and Inuit students get a free ride,” notes Ms. Carling. “That could not be further from the truth. Indigenous students work hard and take on significant debt in order to earn postsecondary degrees.”

The University of Calgary’s faculty of law has added a new course that shows how Indigenous legal traditions can be used in the current legal system. Kathleen Mahoney, chief negotiator for the Assembly of First Nations during the Truth and Reconciliation process, teaches the course. “We’re not looking at Indigenous law as a boutique study or a museum piece,” says Ms. Mahoney. “We want to harmonize the Indigenous legal system so that it complements civil and common law in Canada. We want a practical application. Our laws can be enhanced by Indigenous principles.”

The most ambitious expression of this novel approach to the law debuted at the University of Victoria in September with the launch of a global first: a four-year law degree in which students will study both Indigenous and non-Indigenous law and graduate with two degrees: one in Canadian common law (Juris Doctor or JD) and one in Indigenous Legal Orders (Juris Indigenarum Doctor or JID). The expected yearly enrolment is 25 students.

Former faculty of law dean Jeremy Webber, who was dean from 2013 to 2018 during the development of the program, says the course takes inspiration from the way that McGill University teaches both common law, the legal system that English law is based upon, and civil law, the legal basis for Quebec law. But, he also points out that because First Nations laws are often intimately linked with the land, some parts of the course will be conducted in the field, giving students access to Indigenous ceremonies, lodges and communities.

The program was conceived by two of Canada’s foremost Indigenous legal experts, both of whom are with the UVic law faculty: John Borrows, who holds the Canada Research Chair in Indigenous Law, and Val Napoleon, the Law Foundation Professor of Aboriginal Justice and Governance. Mr. Webber says the idea for the joint degree was hatched in 2004. In the ensuing years, Dr. Borrows, an Anishinaabe/Ojibwe and a member of the Chippewas of Nawash First Nation in Ontario, has piloted sections of the program at various Canadian universities, and in New Zealand and Australia.

Dr. Borrows envisions the course as an exercise of comparison and contrast, in which students will gain new insights by viewing the limits of Indigenous law and of common law. “We hope it will allow students to see common law as a cultural construct rather than as something that has always just been,” he says, citing a fish-and-water metaphor. “The fish doesn’t know about the water it lives in until it jumps into the air.”

Dr. Borrows also hopes the program will address a pressing need by producing more skilled Indigenous lawyers. It may also spawn more Indigenous scholars who can teach at law schools. This would be a welcome development, says University of Saskatchewan’s Dr. Bilson. “In recent years, we’ve been discouraged by what’s happened here. It’s difficult to recruit and retain Indigenous faculty members. There is a high demand and a limited talent pool.”

A scarcity of skilled teachers is just one of the obstacles that law schools must grapple with in their efforts to comply with the TRC’s Calls to Action and the spirit of reconciliation. Douglas Sanderson, a member of the Opaskwayak Cree Nation who teaches courses in Aboriginal law and Indigenous legal traditions at U of T, says one challenge is the public’s basic lack of knowledge of the history of Indigenous peoples in Canada. “It’s hard for students to appreciate an Indigenous viewpoint without a better grasp of history. Without that historical context, learning about treaties is not learning the law in a way that makes sense of Aboriginal claims, it is just learning the law,” says Mr. Sanderson.

Another hurdle is student attitudes. As Dr. Bilson, who has had three stints as dean of law at U of S, notes, “We’re always confronted with a group of non-Indigenous students who don’t see the value of these courses. It’s important for us to get these students to understand that they will be dealing with Indigenous peoples and Indigenous businesses in their careers.”

Merle Alexander, hereditary chief of Kitasoo/Xai’xais Nation in B.C. and a partner with Miller-Titerle LLP in Vancouver, recalls that when he studied law at UVic in the late 1990s, the topic was dealt with only superficially. “It was really an add-on to other courses and not a meaningful look at the subject.” There was only a handful of Indigenous students and one Indigenous professor, and on a personal level, Mr. Alexander says he found the situation alienating. “The law we were studying represented my reality, but I felt outside of it.”

Mr. Alexander believes that the outlook at law schools is better today, with aspects of Aboriginal law woven into the fabric of many traditional courses, including constitutional law, property law, criminal law and others. He also feels that the exploration of Indigenous legal traditions will be valuable in “demystifying Indigenous law. It’s not so foreign that the differences can’t be reconciled. In fact, people may find more similarities with common law than differences.”

Indigenous online

In March 2017, educators from the University of Alberta’s faculty of native studies launched a MOOC (massive open online course) entitled Indigenous Canada. The course, which is composed of 12 different modules – including “Trick or Treaty,” “Killing the Indian in the Child” and “Red Power” – explores “key issues facing Indigenous peoples today from a historical and critical perspective.” Despite little advertising, it has proved a smashing success, becoming the most popular online course in Canada in 2017, with 21,000 people enrolled.

Still, not everyone is convinced that Indigenous legal traditions can be effectively taught. “This is very much a live issue,” insists Darwin Hanna, an Indigenous lawyer from Vancouver, who teaches a First Nations and Economic Development course at UBC’s law school. Mr. Hanna says the sheer number of Indigenous languages in Canada and the paucity of people who are fluent in those languages is an impediment to interpreting their legal traditions.

“In B.C. alone, we have at least 30 different Indigenous languages and all have unique legal systems and forms of justice. As well, any time you translate into English you lose something,” he says. “Teaching Indigenous law traditions requires a lot of research, an appreciation of the language and an understanding of the dynamics of different communities.”

The Calls to Action process has run into a different kind of difficulty at Lakehead, where Angelique EagleWoman abruptly resigned as dean of law this past April, citing “systematic discrimination.” According to news reports, Ms. EagleWoman, who became the first Indigenous dean of law at a Canadian university in 2016, claimed that senior members of the faculty and administration undercut her authority and ignored her opinions. She also said that, because of staff shortages, she had to teach all of the school’s mandatory courses in Aboriginal and Indigenous law, which she said was not in her job description. Ironically, the law school’s focus on Aboriginal and Indigenous law is a major reason why it was founded in 2013, and why it had received the enthusiastic backing of local Indigenous communities.

A statement released on April 25 by Moira McPherson, interim president and vice-chancellor at Lakehead, and David Tamblyn, chair of the board of governors, said the university does not comment on human resources matters, but noted that the “situation has been difficult for many in our university community.” They added: “We need to address the reality that systemic racism exists throughout society, and that despite our efforts, Lakehead University is not immune.”

Setbacks aside, legal experts believe that this branch of law will continue to grow and continue to exert a profound impact on the political landscape. “It’s a dynamic field,” says Mr. Alexander in Vancouver, who draws a parallel with the explosive growth of environmental law in the 1980s and 1990s. “Indigenous issues are in the news almost every day. No other branch of law can make that claim, and it’s still in its infancy.”

According to McGill alumnus Mr. Bergner, the appeal of this type of law for students is its currency – the chance to participate in living history. “I see it as being one of the key issues of our time, but there’s also a great irony in all this,” he says. “Even though we talk about it as a new sphere of law, Indigenous rights and land claims is actually one of the oldest issues in the country. In fact, it predates the creation of Canada. Until recently, the law hasn’t paid much attention to it. So now the law is playing catch-up, and we still have plenty of work to do.”

Editor’s note: The University of Windsor faculty of law will be hosting the 2018 World Indigenous Law Conference, November 18 to 21, at the St. Clair Centre for the Arts in Windsor, Ontario.