President Brad Regehr speaks with Maggie Wente and David Nahwegahbow on Call to Action number 57 which calls for governments at all levels to educate civil servants on the history of Aboriginal peoples in Canada, treaties and Aboriginal rights, Indigenous law and Aboriginal-Crown relations
In this episode, President Brad Regher will talk with two private lawyers who have dealt extensively with public servants in the course of their work. They discuss call to Action number 57 which calls for governments at all levels to educate civil servants on the history of Aboriginal peoples in Canada, treaties and Aboriginal rights, Indigenous law and Aboriginal-Crown relations
Maggie Wente, a partner with Olthius Kleer Townshend in Toronto, is a member of Ontario’s Serpent River First Nation. Maggie has a broad practice serving First Nations governments, their related entities, businesses and not-for-profit corporations. She is past-President of the Board of Directors at Aboriginal Legal Services of Toronto, and served as a Commissioner on the Ontario Human Rights Commission for nine years.
David Nahwegahbow, founding partner of Nahwegahbow Corbiere in Orillia, has represented First Nations in land claims, treaty and Aboriginal rights litigation and negotiation. He’s a founding member of the Indigenous Bar Association. And he’s Anishinabe from Whitefish River First Nation in Ontario.
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Voiceover: This is The Every lawyer presented by the Canadian Bar Association.
Brad: Tansy, bonjour and hello everyone. Welcome to Conversations with the President. My name is Brad Regehr. The 2015 Truth and Reconciliation Commission Report contained 94 calls to action, things that needed to be done in order for reconciliation to take place.
In this episode, we're going to discuss call to action number 57, which calls for governments at all levels to educate civil servants on the history of Aboriginal peoples in Canada, treaties and Aboriginal rights, Indigenous law and Aboriginal Crown relations. It says that this will require skills based training in cultural competency, conflict resolution, human rights, and anti-racism.
In this episode, I will talk with two private lawyers who have dealt extensively with public servants in the course of their work about the kinds of changes that are needed, and what those changes would mean for their practices. My first guest is Maggie Wente, a partner from Olthius Kleer Townshend in Toronto. She's a member of Ontario's Serpent River First Nation.
Maggie has a broad practice serving First Nations governments, their related entities, businesses and not for profit corporations. She advises on treaty and Aboriginal rights and litigation and negotiation, human rights of Indigenous people, in particular in the child welfare system. She's appeared in Courts of Appeal and trial level courts in Ontario, Newfoundland and Labrador, and the federal court.
She is a past president of the Board of Directors at Aboriginal legal services in Toronto, and served as Commissioner on the Ontario Human Rights Commission for nine years. We're discussing the TRC’s is calls to action number 57, which talks about improving Aboriginal Crown relations.
My next guest is David Nahwegahbow, founding partner of Nahwegahbow Corbiere in Orillia, Ontario, a firm that acts exclusively for First Nations individuals, communities and organizations. He has represented First Nations and land claims, treaty and Aboriginal rights litigation and negotiation. He has appeared in courts at every level, including the Supreme Court of Canada, in the landmark Tsilhqot’in case. He's a founding member of the Indigenous Bar Association and he's Anishinaabe from Whitefish River First Nation in Ontario.
Welcome to the podcast, Maggie. Thanks for joining us today.
Maggie: Thanks for having me.
Brad: Maggie, you have a combined degree in law and social work? How does your background in Social Work inform your legal practice?
Maggie: That's a really interesting question and I think the answer to that question has changed a lot throughout the course of my practice. So, I did social work training at the same time as I did law training. And then at the U of T, there's this combined program, and the sort of last years of your program are sort of involved in having placements, social work placements that are legal oriented as well, and having some classes that sort of were called things like exploring the intersections of law and social work, etc.
And I would say that originally, I didn't necessarily understand the utility of the social work training that I had. And it's become more apparent to me over the course of my practice. And I think there's a few different reasons for that. And one of them is working for our First Nations governments and with First Nations people. I think there's a real increasing understanding of the ways in which intergenerational trauma has affected people and in the end communities, and the ways in which colonialism and racism historically has affected communities and their contemporary situations today.
And those are things that I think I have – as they've been gaining increasing attention, really been interested in and kind of leaning into reading about to understand how that informs really on a very individual basis, or on a community basis, how I interact with my clients. And trying to do client counselling and working with them in a trauma informed way, do my community meetings, understanding those things, but I think that that's something that I've really been able to access and understand because of my social work training.
And then the other thing is, is I just think as I've moved forward in my practice over the years, I have kind of gravitated always to these sort of matters of social policy or social services delivery and assisting First Nations government with, for instance, their education authorities or their health authorities, and just really the kind of quotidian questions about those things, helping people with policies, etc.
And then now I work a lot in the child welfare realm, not as counsel for parents, and not even really as counsel for First Nations, generally, but as counsel for First Nations and developing their child welfare laws under the new act respecting First Nations, Metis, Inuit children, youth and families, which is called C92 because it never got a short title.
And my social work background now, it's become apparent to me how helpful it is. Both because I think I can read and understand social work literature really well. But also, I've worked in social services agencies over the years, and I have understanding about how social services agencies operate. And I have some understanding, although I never practiced as a social worker and I'm not a registered social worker now.
But I have some understanding about sort of, what are the mentalities and the sort of policy drivers that underlie social systems and national welfare systems. So, it's becoming increasingly important to me over the course of my training, and I think if you'd asked me while I was doing it, I would have said that I didn't find that it was very useful at all. So, I'm delighted that it's turned out to be useful.
Brad: That’s great. I do know you worked on the First Nations Child Family Caring Society versus Canada case about the inequality of funding for child services provided to First Nations children. What is it about Canadian society and our institutions and law that allow this sort of inequity to be accepted? Do we need cultural competency training for civil servants? Would that help?
Maggie: So, it's funny, you phrased that in the past tense that I worked on that. I mean, I continue to work on it. I just filed a factum in that case the other day at the federal court. So yeah, I'm counsel for Chiefs of Ontario on that and that's because there's a different kind of funding situation than in the rest of Canada for Ontario.
But if you asked me, I actually don't think that the answer is that complicated in reality. I think it was something that, again, I kind of used to grapple with and hopefully, through experience have really understood that just, I mean, it's just really racism and money. And for years and years, governments were able to get away with running systems that were not equal.
And that is across the spectrum of social services and infrastructure and really just anything that First Nations people on reserve especially receive, and we've just, as a society, I think, accepted and benefited from and been extremely comfortable with a situation in which Indigenous or First Nations people on reserve aren't equal. And we've never given that a fair shake as a policy option.
And people will ask me, “Well, how, how do you solve this really systemic problem of inequality and bad social outcomes or whatever?” And I'm like, “Well, let's try equality as a policy choice, which is something that this country has never attempted before?” And to your question about, do I think that cultural competency training is something that will assist? Sure, I sure do. It can't hurt.
So, for starters, that's true. But I think there's something to me in terms of working on these really complex matters of social programming reform, where because of the years of our acceptance of inequality in this country, we've really, First Nations people have lagged so far behind in terms of their outcomes.
And as a result, I think that this is something that civil servants and frankly, all Canadians, I don't want to just say civil servants, but certainly civil servants have grown complacent about. Where I think the civil service comes in and the notion of cultural competency training becomes important is that I think we've gone complacent about it. But I also think that most of the civil service doesn't really understand what it looks like.
And from the get go, that's from the top all the way down, the top of the civil servants all the way down to entry level positions, particularly in Indigenous services, is that people don't have any experience working with First Nations people. They don't have any experience having visited First Nations communities often, and they really don't understand the lived experience and yet purport to govern First Nations people as if they have a moral or intellectual or program based authority over them, as if they understand their communities better than First Nations people themselves.
And I think, to me, the vast majority of Canadians have certainly not gone to certainly a remote reserve or a reserve that's extremely economically straight and some may have been to reserves near cities that tend to, I don't want to draw a huge comparison, but can it be economically better off. And the ability to go to a First Nations community and see it and see the good and the bad.
And what the years of neglect to have done just purely with respect to the infrastructure even of what First Nations communities look like, I think could go a long way to helping people in the civil service understand the situation that First Nations are coming from. And also understand their strengths and just kind of overcome the stereotypes.
I remember several years ago, I was at a meeting with a bunch of different people from a bunch of different areas of the social services kind of world, from Indigenous services and Health Canada, etc. to talk about sort of a broad range of kind of programs that were on two particular First Nations that I work with and they work together.
And there was a lot of talk around the table from civil servants, “Well, you need to do this and you should do this. And you have to, for instance, fill out your seven different community assessments and whatever.” And people just had a lot of opinions about how these First Nations governments needed to be running things internally.
And I finally kind of stopped the conversation and they said, “Can everybody here just raise your hand if you've ever been to either of these two communities?” And maybe one or two of them had been there out of, I would say, 25. And to me, it just seems like it should be a no brainer that people who are purporting to govern and have authority over communities should have been to those communities. And so to me that's step one in cultural competency, and then maybe we can work from there.
Brad: It seems to me that the whole system has systemic racism could say baked into it, or it's just so entrenched, whether it's the two departments or legislation like the Indian act. If there's one thing you could do to change right now, what would that be?
Maggie: There's no question I don't think that it's baked into the system. We have huge bureaucracies that are devoted to regulating the lives of, frankly, a pretty small proportion of the Canadian population. And I think, to the extent that we're going to have that, there's going to be racism within the system. And I think, if I could change something and this is huge idea, as opposed to little idea. But if I could change something, I would think it would be extremely important to start taking concrete steps to giving First Nations people the ability to run their own lives, and to control their own destinies.
And from what I've seen, through the ranks of the civil service, and I've heard comments from, people at all ranks and people in the political ranks as well, just an extraordinary mistrust that First Nations are able to do that. And to the extent that people can just start thinking about trusting First Nations to control their own destinies and lives a little bit more and start removing state control over their lives and their programs, and replacing it with First Nations control. I mean, to me, that's how it has to be. And the other thing, as I said before, is like let's try a quality as a policy imperative in this country and see what happens.
Brad: It's interesting, you mentioned trusts, because the TRC defines reconciliation, this ongoing process of establishing, maintaining a respectful relationship and trust is pretty key to any positive relationship. So, what is the Crown going to need to do to gain the trust of First Nations people because I just don't think that trust is there?
Maggie: I mean, look, if I had the answer to that, I would probably have a very different job than drafting bank Council resolutions in my office right now. I mean, when you think about it, to me, how do we get to trusting people? I mean, I think one thing that would be helpful is if, if the Crown trusted First Nations people, and maybe some of that trust would be returned.
But right now, I think we have a situation where the trust is absolutely completely shattered, because for hundreds of years, the message is you don't deserve it. You don't deserve clean drinking water. You don't deserve to have a doctor in your community more than once a month. You don't deserve to take care of your own children. That's a pretty hard thing to recover from.
And so, when you talk about how the Crown can start building trust as an institution, to me, it does seem insoluble. And that's why I think maybe they'd need to just understand that they actually have really mucked it up and haven't been doing it better than First Nations people were doing themselves. I mean, that's clear. First Nations had communities and policies and systems that were very functional until the Crown started kneecapping it all and taking the lands and resources away and taking control away.
And I think maybe the baby does need to get thrown out with the bathwater, if you will because it just doesn't seem to me like that there's an necessary reason to continue on in this way. Why do we need to build trust as opposed to just to kind of start dismantling it, and thinking about a different way that we can operate?
And I know some people will think that well, that’s a bananas idea. We could never do that. But it also wasn't that long ago that it was that way. And so, if people can start thinking about ways to do that and making positive steps in that direction, there may be some trust.
I don't know, the individual people I work with within Indigenous services in CIRNA, the extent to which they trust First Nations and show First Nations that they respect them, and that they understand them, and that they think that they can do it for themselves. Those are the people who gain trust on an individual basis. But often that trust is broken by what the institution continues to do.
Brad: So, do we get rid of the Indian Act? Is that a good place to start?
Maggie: Sure, I think that's a good place to start at. I don't think you can just be like tomorrow, there's no Indian act, because of course, there's all of these mechanisms that are baked into the Act and baked into systems and lands management control and people control and whatever, that you can't just be like, “Tomorrow, it doesn't exist.” But obviously, there's ways that you can do it to say, well, there's these huge aspects of it that we don't need any more and start replacing them, start replacing them with First Nations control.
But then the other thing that you have to do is not blow that system up and say, OK, First Nations, now you're on your own, in your incredibly unequal socio economic circumstances that we've created. You have to support people to run their own systems. But I mean, I don't think anyone really thinks the Indian Act’s doing anyone any favours right now.
So, again, you don't just blow it up in one day. But I think you need to start thinking about how to just move it out and stop regulating First Nations people, stop regulating their identities and their lands. They can do it themselves.
Brad: Canada, it holds itself out as being an adherence to the rule of law. And you've written articles in the past, in which you have suggested that judges are applying the idea of the rule of law in a one-sided way. Aboriginal peoples are being held accountable, whereas the Crown is not. Can you talk a little bit more about that?
Maggie: Yeah, I mean, that's something that I think it's actually gotten quite a bit, there's been quite a few people talking about that recently. And, I mean, that's something that I see every day. And the rule of law discussion is the thing that always comes up when there's protesters taking to the streets, or the fields or the lands or the bush to prevent developments from going up.
And then there's this criticism, well, people have to abide by the rule of law and you can't be out with social unrest in the streets, to which I say there's a couple of responses to that. One of which being out in the streets or in the bush or blocking, putting yourself in the front lines is not usually the first line of defence for Indigenous people or anyone. It's the line of defence that you have when you don't have any other recourse.
And the reason why there's no other recourse is because the systems are broken. And Canada, the provinces, whoever, they're not living up to the laws that the Supreme Court has set down that even those modest protections that the Supreme Court has set out to sort of backstop the erosion of Indigenous rights and the erosion of sovereignty and jurisdiction on the land. Those are not being respected in really fundamental ways. And because of that, then people are taking to the streets.
What we are doing is we're granting injunctions to remove people from lands so corporations can continue to pursue their corporate aims, and we're not holding states and provinces governed by federal government to account to abide by the protections that the Supreme Court has said that Indigenous people and Indigenous rights should have.
And so, because of the operation of the way that power works, the federal and provincial governments can push and push and push. And then we end up in a situation where we do have conflict, physical conflict. And for whatever reason, once it gets down to the injunction, they’re always talking about the rule of law and applying that as against professors and not talking about how the states need to be living up to that as well.
Brad: So, what would it mean for the government to respect the rule of law when it comes to Indigenous peoples?
Maggie: Well, one thing I think that they do, and I don't actually work too much in the resource development sphere anymore, but certainly, when I was doing it, and seeing what I see from my colleagues and whatever, is that the Crown tends to risk manage their consultation and accommodation processes. So, they'll push and assist proponents, but they make space for proponents and proponents will go far.
Their consultation will not be closely managed or won't be sufficient, or it won't respect what Indigenous nations want out of the process. They'll risk manage it in a way by sort of, I think just saying to themselves, well, how likely is it that there would be – I mean, I don't know that this is what happens, this is what I imagine happens, is how likely that this particular project is going to result in conflict, how likely is it that this particular First Nation is going to sort of take to the streets, or take us to the court, or whatever and manage it that way.
And as opposed to actually just kind of fulfilling their obligations in the first place without it being a risk management project on the part of the government. And I think I see that in lots of different spheres across the country in terms of just not a priority deciding you're going to live up to your obligations, but deciding you're going to live up to your obligations when there's a risk of litigation or risk of conflict.
Brad: I got one more question for you. You've been you've been trained as a lawyer, you've gone through the Western system of training lawyers, you're working as a lawyer. What’s driving you? What do you want to see happen in the future?
Maggie: I have a great answer for this, which is actually a quotation from one of my summer students, who comes from one of the communities we work with. It’s so great. She said, “I didn't go to law school, because I love the law. I go to law school because I hate injustice.” And that's really stuck with me and she just said that to me over the winter time.
What is the endgame? I don't know. What drives me is the desire for justice and I don't know where that takes me because I'm not, unfortunately, confident that I'll see it within this lifetime. But I think trying my best to make some system somewhere more just as we move along, is, to me sort of the best that I can hope for.
The other thing that I have been really focused on, particularly in the past few years is trying to mentor Indigenous people to become lawyers to work within their communities and fight for their communities in a way that takes the lead from communities as opposed to leading them along. So, thinking about practicing law differently in a society where we have First Nations that are really dependent on lawyers to vindicate their rights all the time. So, I don't know if that answers your question, but there it is.
Brad: So that's an awesome answer. Maggie, I want to thank you for taking the time to speak with me. I want to thank you for your wisdom, your insight, your honesty. Miigwich.
Maggie: Miigwich. Thank you so much.
Brad: Welcome to the podcast, David. Thanks for joining us here today.
David: Nice to be here, Brad. Appreciate the opportunity to speak with you.
Brad: So, Dave, can you tell us how did you come to do the kind of work that you do? What drew you to work in land claims and treaties?
David: Well, I grew up on the res community near Manitoulin Island, mid-Northern Ontario, Whitefish River First Nation actually. And I don't know, I guess when I started to get a sense of maturity and a sense of social justice, it did occur to me that maybe law was a field that I could pursue, to redress some of the issues that are affecting our people. I have managed to get some of the things done that I thought I could do in terms of advancing the interests of our people. So, it's been a decent run so far.
Brad: So, is there anything about sort of land claims and treaty work that drew you as opposed to say, doing criminal defence or family law or something like that?
David: Well, when I started out, I didn't do land claims right away. In fact, I did a general practice when I started. I did pretty much anything that walks through the door because I was young lawyer, because I wanted business, because I wanted that kind of a well-rounded experience. So, I always plugged into those issues. Some of the work that I did when I started practice was with the National Indian brotherhood kind of consulting type work.
I don't know if you're around. I did some work for Parliamentary Commission on the self-government that was called at the time. The Penner report, I did the report on the trust relationship. And, I mean, that was kind of significant. I didn't actually do much in the way of land claims at that point in time.
But, of course, I was always interested in treaty and Aboriginal rights issues. And I started to do some of the work probably, I don't know, maybe three or four years after I got into practice. And interestingly enough, some of those Aboriginal rights cases that I've started working on back then are just now coming to fruition after so many years. Like some of the work I started in the 90s.
Brad: With all your experience, how would you, at this point in time, view, the state of the relationship between the Crown and Indigenous peoples?
David: Well, it's improved a great deal. When I started, we didn't have much in the way of – I was, of course, when I got called to the bar was just almost the same time as Section 35 was being implemented. Section 35 of the Constitution Act, which recognized the Aboriginal and treaty rights, existing Aboriginal rights and treaty rights. And that was a significant turning point.
But even with that, courts weren't open and certainly governments, Crown agencies weren't immediately open to addressing Aboriginal and treaty rights issues. It was an exciting time, because the system was still learning about these kinds of issues.
While it was a bit, I would say, the judicial system wasn't as receptive initially. I think we've come a long way. And a lot of the reason is because of the ability of our people to be able to enforce their claims in the courts. Some of the early decisions, as you probably know, Brad, being a practitioner yourself, were defence cases, hunting and fishing defence cases. And really, I mean, while those cases were important, we're really just fighting for the ability to survive.
Our people being able to pursue livelihood, hunting and fishing, but they weren't really the cases ought to be like litigation cases where, which have huge commercial implications. It's moved the Crown, I think somewhat, I'm still not thinking we're there, where we ought to be in terms of the Crown acting honourably in ways that they should to deal with our rights given the nature of some of those important sacred agreements like treaty rights. They still would try to marginalize those things. The Crown still tries to marginalize the relationship but there's been a lot of improvements, I guess I can say.
Brad: How would you explain to your clients – how do you explain to them what, why the government is fighting against them, against their rights, against things they're entitled to? How do you address that with your clients?
David: Good question, actually, I hadn’t really thought about it too much. I guess, being Indigenous myself, I don't know, I never really had to explain it a lot, because I understood where they were and they understood where they were. And we kind of had a common sense of our rights being not embraced. You know what I mean? genuine. The Crown doesn't embrace our rights, even after 1982 when rights became constitutionally recognized, they still didn't really recognize our rights.
They certainly didn't – when I say embrace them, there was that whole debate about whether Section 35 was an empty box or a full box. Of course, governments across the country felt that Section 35 was an empty box. In other words, the recognition was really meaningless and that's been the kind of approach of the Crown right from the outset.
Brad: Do you think some of that comes from the TRC calls to action?
David: Well, those are helpful, but we've had lots of reports over the year. TRC was significant, for sure because it started to expose the sort of the raw nature of the harms. Well, that started with our camp, because it talked about being in residential schools and the residential school system. But TRC was effective in in terms of communicating in a national sense the breadth of the harm that was caused. Things like talking about cultural genocide, those had important impacts.
Of course, they had great commissioners. Murray and Willie and Murray, they had such a good mix of communication abilities, legal abilities, and a lot of credibility and did a great job. And they did a report which was focused, well focus. And so, it was effective in a way it was able to bring focus to the harms on the people over the years. And the importance of education, and the importance of reconciliation.
So, I think, I started out by saying, of course, they've been all these reports, and largely over the years, reports been issued and they’ve had some success but they haven't been as successful as they ought to have been. Our cap was one, right? It should have been implemented but it wasn’t. I hope TRC gets as much traction or more traction, rather, it seems to have the traction. And maybe this was the strategy of the commissioners to kind of reach the public better. So, it's been able to reach the public. And so, the politicians have got to act.
Brad: Actually, I’m going to ask you a couple questions about the calls to action. You noted the calls to action directed toward the legal profession. In 2018, you helped create a guide in collaboration with the IBA and advocate society and the Law Society of Ontario to help lawyers working with Indigenous peoples. What drew you to working on that report?
David: This was definitely a result of TRC, call to action 27. The advocacy society was responding to that call to action, which calls on the legal profession to promote education within the professional. And so, the advocate society decided in that one year that they should do something. So, they did a number of things. They provided funding for and promoted funding for scholarships for Indigenous students. And one of the projects was to develop this guide for lawyers working with Indigenous people.
And being on the board, I thought was a great idea. So, I contributed to the idea. It wasn't solely my idea. It was I thought a great idea, and I jumped on it at the time. And I said, “Well, I'll do whatever I can to help out” and volunteered the people that my firm to contribute to it. And called on all my friends across the country to help sort of develop this guide.
So, there was a pretty broad based effort to work on this and it had sort of a two-fold purpose. One of them was to educate the legal public lawyers, but also the judiciary on some of these issues like the Royal Proclamation of 1763, the Niagara treaties Aboriginal rights.
The other kind of inspiration for that document referenced also in the introduction in that guide was a paper written by Justice Finch Lance, former Chief Justice of the BC Court of Appeal, about the duty to learn. If we deal with Aboriginal issues, his argument was we deal with Aboriginal rights, Aboriginal title, treaty rights, which are based on Indigenous laws, then we really have a duty as a profession and as judges to learn what those Indigenous laws are. So, that was kind of the other inspiration for that guide.
Brad: What about civil servants, Crown servants, call to action number 57 calls upon them to learn about the history of Indigenous peoples, treaties, Aboriginal rights, Indigenous law, Aboriginal Crown relations, it talks about skills based training, intercultural competency and human rights, anti-racism. Is that a start or is that enough?
David: Well, I think it's surely a start. One of the most frustrating things working as a lawyer for Indigenous peoples, and then the land claims and treaty rights area is having to deal with kind of an adversarial attitude on the part of Crown lawyers. It’s changing. And there are some great chrome lawyers now who take a different approach to the job, but like I said, we certainly aren't there yet.
There's no reason why we should have to reprove treaties, for example, that we should have to reprove that the Treaty of Niagara was the Treaty of Niagara. But we have to do that every time we go to court and we want to set that information or that evidence, or those sorts of important developments in the legal history of Crown First Nation relations, Crown Indigenous relations.
We need to re-establish those baselines and we shouldn't have to. We should be able to assume that the law recognizes the Niagara Treaty is an important document or the Huron treaty as an important document. That’s sort of the intent and purpose of those things. Although, there is some progress in dealing with the Crown and progress in Crown attitudes, Crowns civil servant attitudes. From my perspective, I don't think we're there yet. I still think that dealing with or finding enlightened lawyers amongst Crown law offices is the exception rather than the rule.
It's getting better, but we're not there yet. I also do some negotiations of these things. Negotiations, I think we find a little more enlightenment. But even there, the lawyers that I deal with, I mean, they're not all as enlightened as they should be but it's improving.
Brad: I'm going to paraphrase here. We had one of the TRC commissioners say, essentially, you can take the racists out of the system, but you still have a racist system. What else needs to change?
David: I'm not so sure about that. Not really sure. I'm working on a few cases right now. I think the judiciary has got to be prepared to be more forceful. In the early years, as you probably know, the Supreme Court of Canada would – and even the superior courts and the Courts of Appeal, they knew what the right thing was.
They knew how they should decide but they didn't want to force the hand of governments too much. So, it was a careful approach like Delgamuukw, for example. They made a ruling, which was good, but then they decided they couldn't issue the order that they ought to have, declaration of Aboriginal title. So, they sent it back after, I don't know, 20 years of litigation and millions and millions of dollars.
Well, now, they're starting to be a little more – they’re a little braver about issuing orders, being less fearful about the implications of those orders of the Tsilhqot’in case. They did issue a declaration, the first of its kind on Aboriginal title. I think the courts have going to be more willing to be more forceful in government because governments, politicians, and the people that worked for them, they still got too much room to manoeuvre. They got still too much latitude to avoid having to do things, to do the right thing. So, I think, probably more forceful court decisions.
We get, for example, that child welfare case that went to the Canadian Human Rights Tribunal There, we have an example of, I think, an institution tribunal that's prepared to force – that understands the problems within that system.
I don't know if I’d call it toxic, but certainly, it's not healthy towards Indigenous people and Indigenous rights and talking about Indian Affairs, what's called CIRNA now and I guess it is Indigenous Services Canada and Crown Indigenous Relations Affairs. They still don't have within their system healthy attitude about the rights of Indigenous peoples. They're still pretty bent on denial, undermining, and I guess I suppose that the history of that organization, really, Indian Affairs is basically colonialist and racist.
So the only way it's going to get fixed is if tribunals and courts are prepared to take them on fully, like the Human Rights Tribunal did in that caring society EFM Child Welfare case. Really imposed some serious borders on the federal government, and was willing to supervise to retain its jurisdiction to make sure that that government didn't wiggle out of their obligations and it still retains jurisdiction.
And I think that's an example of what courts need to do. I think they need to be firmer and more diligent and dealing with organizations that are the sort of interaction point for Indigenous peoples. You have those kinds of organizations within the provinces as well. But in this case, it was Indians affairs. So, I think basically, they got to be sued and it's got to be – like I said, courts and tribunals have got to be more willing to be firm with the Crown.
Brad: So, Dave, I've one more question for you. You've been through the interview, we've learned about your experience. And you got through law school, you've worked as a lawyer for many years. What gives you hope? What do you want to see happen in the future?
David: Well, I’m getting close toward the end of my legal career, I do reflect on these things. And when I started out, like I said, it was not as hopeful as it is now. There's a lot of things that have happened. Section 35, we had the Garren case.
I guess what gives me hope is the willingness of the courts and tribunals to be more open to recognizing the rights of Indigenous peoples. There's been really a lot of progress in the Supreme Court of Canada. You can just look at it at the progress of the jurisprudence since 1982.
It's slow, but it is really moving the yardstick. And from that time period, from 1982 to the present, the changes have been night and day really. And you had to have been involved in the system, I guess for as long as I have, to know that there's been progress.
So, I guess that that's sort of the thing that makes me hopeful. And the fact that there are a lot of young Indigenous lawyers who are more aggressive, they’re more confident. Certainly, more confident that I ever was, and probably more able than I was ever in terms of advancing the rights of Indigenous peoples. So, I'm hopeful for that.
And then, of course, there are changes, like I said, within government. They're starting to become more responsive. So I'm hopeful. I don't know if that answers your question, Brad. I'm just generally an optimist when it comes to looking at whether people are making progress. We get three or four steps forward, we do get some backward movement from time to time.
We lose sometimes in court, we lost a few in the Supreme Court of Canada and it's sad, but we got to get back up and keep fighting. And so, I think we're on an upward trend. Indigenous people, I think, we've got things going our way. People are starting also to see things more clearly for us. We have lots of support amongst the general public. People are becoming more educated, I guess you could say and that's helpful.
Brad: Dave, that was the answer I was looking for. Thank you very much for giving me that honest insight, that honest answer. I really appreciate it. I want to thank you, miigwich, for all your thoughts on these difficult subjects and I really appreciate you being here today..
David: OK, you’re welcome. Good talking to you, Brad.
Brad: Our guests this episode had been David Nahwegahbow, founding partner of Nahwegahbow Corbiere in Orillia, Ontario and Maggie Went, a partner with Olthius Kleer Townshend in Toronto. We want to hear your stories about your experience as an Indigenous person with a legal profession, as a practitioner, as a student, or as an academic.
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