The Every Lawyer with Julia Tétrault-Provencher and Brad Regehr, CBA President from 2020-2021. National Indigenous History Month Special. Actionable guidance on the TRC Calls to Action.
Excerpts from Brad Regehr's Conversations on Calls to Action with:
John Borrows
Naiomi Metallic
the late Harold R Johnson
Stacey Soldier
Dr. Val Napolean
Signa Daum Shanks
Maggie Wente
David Nahwegahbow
Brenda Gunn
Aimee Craft
Robin Sutherland
and Alyssa Bird.
Have a gentle heart when you hear about hard things
[Start of recorded material 00:00:00]
Signa Daum Shanks: Have a gentle heart when you hear about hard things
Brad Regehr: This is The Every Lawyer presented by the Canadian Bar Association. Tansi, bonjour and hello, welcome to the Special National Indigenous History Month episode of The Every Lawyer. I am Brad Regehr CBA President from 2020 to 2021. With me for this episode is the regular host of the CBAs The Every Lawyer podcast Julia Tétrault‑Provencher. Julia thanks for asking me back to The Every lawyer.
Julia Tétrault‑Provencher: It’s a real pleasure thank you to be here today. So how is life after being CBA President?
Brad Regehr: I’d like to say that it’s back to normal but I don’t know how most lawyers have a normal life, certainly I know I was doing CBA presidential matters until late in the evening on August 31st 2021 and then the very next day clients started calling and were like OK you’re done being President now let’s get these projects going [laughs], and I was like thank you for being so patient with me. And it got pretty busy. I did end up just deciding to take a few days off. I sat on the couch and watched Netflix for a couple of days just to decompress. But work it picked up right away and yeah it hasn’t slowed down at all. I know in some areas during the pandemic it slowed down but certainly not my job; so it’s – I’m largely back to being a lawyer all the time.
Julia Tétrault‑Provencher: And are you still podcasting in-between all this?
Brad Regehr: You know I’m not. I had had a discussion with one of our senior associates at the firm about possibly doing our own podcast series with our firm on aboriginal legal issues and, you know, work got busy and we just never got around to it, and she has since moved on to another firm so I may have to see if there’s someone else who’s willing to do it with me because I thoroughly enjoyed the podcast that I did while I was CBA President.
Julia Tétrault‑Provencher: Oh that’s very nice and we enjoyed them as well so we will it will work at some point that you will have your own podcast. And so what have you been working on these days?
Brad Regehr: The area that I work – the vast majority of my clientele are indigenous groups and primarily First Nations and so it’s kind of a mixed bag. I’ve had some litigation and then some of my clients decided to buy businesses and really wanted me to do it so I had largely left behind doing any corporate commercial work. So I’ve ended up having to do a bit of, a few commercial deals but certainly the litigation has moved forward, and of course one of the big areas that our firm works in is specific claims which are historical grievances that First Nations have with the Crown and yeah we’ve been working in that and it has - that has not slowed down at all, more and more and more grievances keep coming up and especially as we do the research and just find a lot of the unfortunate history in our country in terms of how Fist Nations were treated by the Crown.
Julia Tétrault‑Provencher: Totally. It’s sadly increasing probably. And what have you got on your horizon, like what’s for the future?
Brad Regehr: Really just to continue working in this area. In the last number of months we’ve opened up here in our Winnipeg office a record number of files on historic claims. A lot of the specific claims here had been focussed on Treaty 5 and Treaty 1 and we’re really moving forward on claims involving Treaty 2. So that’s really – I would actually like to expand our office here if we could. And on a more personal matter I’m actually getting married in a few weeks.
Julia Tétrault‑Provencher: Oh congratulations.
Brad Regehr: So that’s taking a lot of my attention right now.
Julia Tétrault‑Provencher: I’m sure it does. No that’s very nice and it’s summer then.
Brad Regehr: And a lot of people go, “What Brad and [unintelligible 00:04:06] aren’t married?” like no.
Julia Tétrault‑Provencher: [Laughs] No it’s happening now. I’m done as the CBA President I can get married [laughs].
Brad Regehr: Yeah.
Julia Tétrault‑Provencher: No that’s very nice so congratulations, very good.
Brad Regehr: Thank you. We were supposed to get married before I became CBA President but this little virus called COVID-19 got in the way.
Julia Tétrault‑Provencher: Just a little thing, right, just a little [glimpse 00:04:26] [laughs]. So well Brand thank you very much. We’ve put together an [edit 00:04:31] of some the most poignant moments from your conversations on Calls to Action Podcast Miniseries which you did for The Every Lawyer. A tribute and big thank you to you for all the work you’ve done over the years with the National and Manitoba branches of the CBA. This episode aims to encourage our listeners seeking actionable guidance in answering the Calls to Action. We can only hint at the breadth and depth of the material you covered in your podcasts. And so we encourage all our listeners to go back to the podcast archives and to listen to the full conversation. Thank you for joining us today.
Brad Regehr: Thank you Julia and good luck with your new role as CBA podcast host. And remember to have fun.
Julia Tétrault‑Provencher: Thank you.
Brad Regehr: So now I understand in addition to my voice you will in order the voices of John Borrows, Naiomi Metallic, Harold R. Johnson, Stacey Soldier, Dr. Val Napoleon, Signa Daum Shanks, Maggie Wente, David Nahwegahbow, Brenda Gunn, Aimee Craft, Robin Sutherland, and Alyssa Bird. So let’s start with my conversation with John Borrows and Naiomi Metallic on Calls 42, 50, 51, and 62. All of which deal with recognizing and implementing aboriginal justice systems, here’s me asking them for their viewpoints on a striking experience that I had illustrating what’s at stake.
I want to ask you about an experience that I had and your viewpoints on it. Probably 20 years ago I was working with a First Nation here in Manitoba and they had purchased some land that they were going to add to their reserve, and the land in question had some public utility infrastructure on it and as part of the additions to reserve process that interest had to be accommodated somehow; and how the public utility was insisting upon this form of easement interest. And I remember being at a meeting and the Chief and Council were there and the lawyer from the public utility was just insisting this was how things had to be done.
And one of the councillors spoke up and he said, “This isn’t how we’ve done things on the existing reserve land base that we have right now, when we need this infrastructure we call you guys up you come out and we show you where you need it and we do a council resolution and you put the infrastructure in and that’s that.” And the lawyer just scoffed at that and said, ‘There’s no way, we’ve never done that here or anywhere else, we’ve always had this easement interest.” And my western trained mind was going yeah just why would they have done that? And whereas the other part of my brain was going there’s something that this councillor was saying and subsequent to that one of the elders said the same thing.
And I went there’s something here and I don’t know what it is so – especially as I was driving back to the city and thinking more and more about it and I went into the Land Registry system and surprise, surprise this public utility had never ever been issued an Indian Act permit or an easement or anything for any of the probably hundreds of miles of infrastructure they had on this First Nations reserve. And then the next meeting it was very interesting because the dynamic of the table had changed radically. Did I experience an indigenous legal tradition there? I mean it was – you know there’s a humorous aspect to it but there’s – there was just something so moving about it as I think about it years later.
John Borrows: I really love that example because it does illustrate what we were trying to talk about earlier which is law is something you do it’s not something that’s just done to you. And so here are these councillors and elders that are trying to work with a lawyer and create law together co-determinate the way that they might interact in the space to have different interests in land be present there and yet recognize that this is going to be reserve land. And so the example is amazing because it shows that it should be multidirectional in the way that we function, that there’s room for reciprocal elucidation here and to the extent that that lawyer wasn’t taking those cues and recognizing that law is a process of problem‑solving then we’re not necessarily doing our work in an appropriate way.
And what’s also interesting is it’s not just an example of indigenous law but it’s an example of the addition of indigenous law can actually redirect us back to the legislation in this case and cause us to see something that wasn’t being taken up but that utility in that context. So we often say that teaching transystemically is not just about the resurgence of indigenous law it’s opening up new possibilities for the common law in legislation to see that in a new light. And to the extent that we have the resurgence of indigenous law and the resurgence of the common law in ways that are participatory, in ways that don’t just have this top down effect but really do engage us in a democracy that facilitates the dignity and worth of different folks that are trying to get their points of view across.
And then coordinate that with some sense of certainty as these agreements are put together. I really think that that is a case study for indigenous law. And I’d like to actually pull out this Call to Action which is two lawyers through the Federation of Law Societies to receive appropriate cultural competency training which includes all these histories of residential schools and [unintelligible 00:10:53] trees and aboriginal rights and indigenous law and aboriginal Crown relations but also says “requires the skills-based and intercultural competency, conflict resolution, human rights and anti-racism.”
This 27th Call to Action just fits to this example you’ve given us because it shows if that lawyer could have pulled on that intercultural competency and had the skills based around conflict resolution that had this context of how indigenous peoples are in their own laws and then how their own laws relate to the Canadian state. There’s just so much room for adding to our opportunities and possibilities as lawyers. It gives us more tools and more off-ramps and more opportunities as I said, and that’s a good thing in my view.
Brad Regehr: Naiomi what do you think of my example?
Naiomi Metallic: [Laughs] What John said. No I mean that’s a beautiful answer and it just had me reflecting because I, you know, practiced for 10 years and primarily like you, Brad, like working with a lot with communities but working pretty well with Canadian law and how, you know, when you sometimes just come from that vantage point it almost looks like there's voids and stuff like that that are created by the Indian Act. But I think that's just a construction of –. So I was – you know your example makes me think of, you know, that I have recently taught my students about, you know, the Certificate of Possession on reserve and like, you know, how so many communities don't even go with Certificate of Possession and they have, you know, customary allotments.
And, you know, there's even like a really recent case I brought to my students' attention where, you know, the courts still really just look at, “Well, there’s nothing in the Indian Act that relates to this particular form of landholding, so it’s nothing,” essentially. But there’s so much room for it. And I think – actually I think I directed somebody to you recently, John. I forget which of your books it’s in, but actually talking about the opportunity of looking at what, you know, from the outside might look like to a void, as a void. I mean we can look to indigenous law, you know, on the issue of customary holdings in communities.
And it seems that, you know, this is sort of adjacent to the example that you were just giving, Brad, and so it can really change the perspective that there is law here, and in fact we can work with it and harness it and yeah have way more tools in the toolbox to be able to address situations.
Brad Regehr: Thanks for that. We do not have a lot of time left, but I’ve got to ask you about a couple of Calls to Action. So the first one I'm gonna ask you about is number 42, and this is where the Call to Action asks federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with Treaty and Aboriginal Rights of Aboriginal Peoples, The Constitution Act 1982, and the UN Declaration on the Rights of Indigenous Peoples. What does that mean to you?
John Borrows: It means a lot of things, but one of the things it means is access to justice. When people have the ability to secure institutions and resources, to answer questions that don't cost a million dollars that are in their backyard that have a check and balance function in relationship to, say, council or other authorities that are, you know, influencing their live it allows for people to secure answers to their questions in ways that facilitate commercial transactions, address human rights, help us with, you know, personal injuries and contract issues. And so, you know, this 42nd Call to Action is just really critical because it says that the governments commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with Aboriginal Treaty Rights, the Constitution Act, UNDRIP.
It has been endorsed by Canada. And I taught a course in tribal courts when I was at the University of Minnesota Law School for five years, and it was over a thousand page case book. And it just gave me huge confidence to see how First Nations in the United States, which are similarly situated socially to First Nations in Canada, can pick up that work and use their language, their stories, their own constitutions, their own laws, their own members to provide independent impartial decisions that are of the highest standard, that have rigour attached to them that allow for a transparency and an accountability that is lacking at this moment. And so I think that there's so much in this Call to Action which is necessary for access to justice.
Brad Regehr: Naiomi?
Naiomi Metallic: I come from that perspective as well, like I just – some of the projects that I've been involved with, I mean I do a lot looking at inequality with respect to provision of services. And a lot of my work is focused on child welfare and essential welfare but recently I've really – another area that I will add to that is justice. That justice services have been sort of treated like other services to indigenous peoples as, you know, governments fighting between themselves about which one doesn't have responsibility treating it like the perennial hot potato. Meanwhile communities are not, you know – justice is really important in terms of, you know, decision-making and accountability and transparency, the beautiful way that John articulated it.
And, you know, that is so fundamental, security and safety in a broad sense and being able to have control over, you know, how we interact with each other is so fundamental.
Brad Regehr: In some cases the path forward is clear and the benefits to all are more or less obvious or at least easy to point out to someone who may not see them right away. In other areas the Calls to Action force us to take a hard look at the inadequacies of the current system. For this I invited Stacey Soldier and Harold R., Johnson to discuss Calls 34 to 40 which deal with indigenous people in the existing colonial justice system. I would just like to mention that the late Harold Johnson passed away this past February 2022. I was very honoured that he agreed to be a guest and my thoughts are with his family. If you could fix something, what would you fix?
Harold R. Johnson: I would delete the word deterrents from the Criminal Code.
Brad Regehr: And why would you?
Harold R. Johnson: Firstly it doesn’t work. It’s never worked. What we’re dealing with is unhealthy communities, and the communities are made unhealthy by the Justice System, in part by police, by taking our people and sending them to jail where they learn a new culture. Residential schools erased our culture but they didn’t give us a replacement one. In about 1960 in Saskatchewan we started locking up Aboriginal people and the incarceration rate has continuously climbed since then. We changed the Criminal Code in about ’95, added Section 718 2E. It didn’t make any difference – the incarceration rates continued to climb. The Supreme Court came down with the decision R. v. Gladue, told Judges to pay attention to what the legislation said that they had to take into account the unique circumstances of Aboriginal people.
Nothing changed incarceration rates continued to climb. During that period I had a Judge and I made Gladue arguments, and he got really angry at me for making those arguments, and I know he gave my client a harsher penalty because I had dared to make Gladue arguments. The Supreme Court came back with R. v. Ipeelee, told Judges you damn well pay attention to what we said in Gladue. Nothing changed the incarceration rates continued to climb. And now we’re in 2021 and nothing that we’ve done tinkering with the Justice System has made any difference. And now we’re locking up more women and children than at any time before.
Throughout this period, we’ve been sending people to jail and they come back to the communities and they bring a new culture. They bring back jail-house culture. In jail you learn violence solves problems, the tough guy’s the hero. The institution is going to feed you. If you’re bad in [and rough 00:20:24] you learn to disrespect authority. And we bring this culture and this jail-house language back into our communities and we teach it to the youth. We’ve got youth today who think the jail-house culture is Aboriginal culture. And through this process we continuously destroy our communities. But justice isn’t interested in communities.
We’ve got this story, we tell ourselves that justice is about the individual and that we can only deal with individuals and it’s not our business to solve community problems. And in maintaining that attitude we’re destroying communities, and we need healthy communities to have healthy people.
Brad Regehr: Thanks. Stacey, do you have anything you want to add to that?
Stacey Soldier: The only comment I can really add to that is just there’s this expectation from the public that the criminal justice system has to deal with people, they’ve got to lock people up. And so, you know, these very American ideas and these very old, I say old-fashioned ideas about crime and punishment, really takes over particularly when you see cases that attract a lot of media attention. And what’s really forgotten in all of this is that by the time people get to the criminal justice system there’s already – they’ve already been through a number of system failures. And by systems I mean things like the family has failed in some way and for many Indigenous people, it’s as a result of colonisation and many of the different after-effects that have gone on over the last century and a bit – a century and a half.
So the family, you know, is dealing with a lot of trauma and dealing with trauma that’s been long-standing within them and their communities. And then you look to the community to maybe, you know, deal with this person, like this person is having a lot of difficulty, their family unit is in disarray. Well OK, then, like let’s bring in the CFS system. And then again we see, throughout the CFS system, throughout the history, particularly in Manitoba, and all across the country we have a number of different ways where the CFS system offered no assistance in making life better for Indigenous people, and in fact, oftentimes a lot of trauma has come out of that system.
So then, you know, the person then gets to the criminal justice system and now there’s this idea that OK well the system is going to clear this up and take care of this problem. But we’re really forgetting that just by the time the person gets there we’re sort of the last stop, the criminal justice system, and it’s like putting a Band-Aid on something that’s completely gushing, a complete gushing wound. You know basically our solution, and that’s basically what the public – you know and the public gets outraged that things, you know, that we’re not locking people up and we don’t have the death penalty. And so I think, one, there needs to be education in terms of what the Justice system actually is set up to do.
And then also the realities of what’s – of what are some of the things that has brought a person to the criminal justice system, an understanding of the failures that have occurred that have put them in this position.
Brad Regehr: Can you give me some examples of times when the system failed Indigenous peoples
Harold R. Johnson: Easy. A woman and her boyfriend, they’re young in their 20s, they’re having a couple of beer – they’re not drunk, they’ve only had a couple. They’re sharing a cigarette. He reached over and took the cigarette out of her mouth before she was ready, and something about him touching her lips triggered her PTSD and her fight, flight or freeze. The next thing she remembers she’s outside and she gave – she was giving the knife to her aunt. She’d stabbed her boyfriend seven times. There’s a huge victim offender overlap. As a Crown Prosecutor I handled 1,500 files a year in Northern Saskatchewan. Let’s assume 1,000 of those files documented a trauma, multiple traumas because it isn’t just the victim; we know that the offender is traumatised by the atrocities that they commit as well.
So you’ve got an offender, a victim, and the five kids who watched in each of those files. Now take my 1,000 files and multiply it by 11 Prosecutors for Northern Saskatchewan and we’ve got 11,000 files a year, each documenting multiple traumas. And there’s only 37,000 people in Northern Saskatchewan – it doesn’t take very many years until that population is traumatised multiple times. Now you’ve got a highly traumatised civilian population and a traumatised police force. I don’t know how members I know right now who are on PTSD leave, they’ve just seen too much. All of those files that I looked at with all of those pictures of crime scenes and autopsies, the ones that filled me with vicarious trauma.
Well those police officers were there and they weren’t looking at pictures of blood, they could smell the blood. So we’ve got a traumatised population and a traumatised police force interacting, and the public expects good things to come from that, and it isn’t working.
Brad Regehr: A common theme throughout my conversations on the Calls to Action was where to find hope, particularly when faced with having no choice but to study the colonial legal system and the brutalities it has inflicted and continues to inflict on Indigenous peoples. Here’s more with Stacey Soldier and Harold R. Johnson. I asked them straight up. I want to ask you both what gives you hope for the future?
Harold R. Johnson: Land-based healing. A friend of mine set up a program called Camp Hope out of Montreal Lake, and healing whole families, taking them out onto the land. And traditional 28 day treatment programs have success rates between two percent and five percent. Two percent for the treatment centres we send our people to, five percent if you spend thousands of dollars a week and go to places like Vancouver. Camp Hope taking people onto the land had a success rate in the high 70 percent range. And he told me that sometimes when he brings people back at the end of the day they’d be crying. They’d say, “I’m an Indian but I never set a fishnet before. I’m an Indian but I never set a rabbit snare.”
So taking people out onto the land connecting them and give them their identity back; I am Indian. And it also gave them a sense of belonging, I belong here, I belong on this land. And when you have your identity and a place to belong you can begin to heal. So if we’re going to go forward with the justice system, and it’s not going to go away just because Harold Johnson is really upset about it, maybe we can marry the two. Instead of sending people to jail let’s send them to bush camps, reconnect them to the land. Give them their identity back. Give them a sense of belonging. What I learnt in the justice system is that people respond when you give a shit about them.
Just show them that you care a little bit and people would respond. An objective professional attitude drives people away. So if I’m going to tell anything to lawyers in the profession, coming into the profession, learn to give a shit. Learn to care. You can do some good.
Stacey Soldier: What gives me hope when I see the students that I’ve had at the Faculty of Law in the last few years who have taken my class, when I’ve been invited to speak at high schools – I took part in a Living Library in one of the local school divisions with Grade 6 students; and so one of the things that really gives me so much hope is how knowledgeable these young adults at the law school and certainly these kids in high school and in elementary school, just how knowledgeable they are about First Nations’ issues, about the Indigenous history in our country, and the truth with respect to Residential schools. They just have this knowledge about it and this understanding that, you know, looking back to me being in law school or even in my education growing up, that information wasn’t provided.
And in law school as well there’s a lot of interest in taking the class, the seminar that I taught as well as the class that I’m in. I find my students just are so incredibly engaged and so knowledgeable. And so it’s when we break down the barriers and we do things like read and listen and attempt to incorporate the Calls to Action that’s when we start seeing those underlying issues. We start seeing the different perspectives and move forward in a positive way. And so one of the things that I told the seminar, the first day and the last day, is that when we know better we do better; and so not just with us personally but the people around us within our practice.
Brad Regehr: I’d like to pick up on Stacey Soldier’s words here because they tie in nicely with my conversation with Dr. Val Napoleon and Signa Daum Shanks on Call to Action 28 which calls on law schools to require students to take a course in Aboriginal people and the law.
Val Napoleon: I think now that there are two colonial stories out there that are really powerful. One is that our law is so different from your law that I can never possibly explain it to you and you can never possibly understand it. And what that denies is that we were and are intellectual people able to articulate our substantive laws, legal processes, legal principles and so on, which is the work we're doing of course. And we're capable of thinking across legal orders. Our ancestors did that, they were intellectual peoples. The other colonial story is that our legal orders and our law are so fragile that if you try and do anything with it you're going to break it, and so therefore you better leave it alone.
And so those colonial stories paralyze what people – the kind of thinking that people are willing to do, the kind of teaching that people are willing to do. And we have to undo those stories and we have to support people to be the best that they can be. And they will make mistakes and that's the way of it. So I really think that there's potential and possibilities that we've yet to fully realise.
Brad Regehr: Signa do you have anything to add?
Signa Daum Shanks: Oh, my gosh how do I keep saying ditto in a conversation and that's OK. But maybe I can sort of think of or like contribute some things that I thought while Val was talking. One of the things that, you know, I heard Val mention the idea of Indigenous scholars also feeling nervous you know, and I feel like sort of frozen in my tracks as every once in a while the way I have to think about it is, you know, thinking of how some peoples might have some knowledge that is deeper and learned within the family and learned within the community. And there might be some peoples who don't have that history and so are personally struggling with trying to do catch-up and feeling a great privilege in learning, but also feeling a great burden to get it better.
And I think in all of this, and I'm not sure if Val would agree with this, is in a sense of – I heard a poet last week describing her poetry and saying have a gentle heart when you hear about hard things. And I thought there's so much of this that is so important for us to do but we need a gentle heart as we see the moments where we're in shock and awe about how long it's been since someone has talked about Makoto [Speaking Indigenous language 00:34:09] or has talked about the role of [Speaking Indigenous language 00:34:12]. And I also think it's very important to tell people about that stuff.
But to also see that there's going to be so many moments where in the old school sort of Ivory Tower kind of way we're so still learning, you know, so that whether we think of it as the fabulous sort of packages and kits and tools we can share with people helping. Or whether we think of how we're literally trying to make a syllabus up that's due in two weeks for a course that we are very aware that is going to be hard on us too and that we're going to be making mistakes and that it's important, and that how we decide to talk about it next term or next year or in a decade might be a little bit different as well too. And I think so many stages of the lifting that's going on with the changes that are behind the issue of this Call to Action so much of that lifting is heavy.
And it's even heavier than me trying to get a dead treadmill out of my house right now which I'm looking at which has barricaded me into my kitchen so please come over and help me. But that I just keep thinking I have to be supportive and finding humour and finding, you know, a way to make a cup of tea way more regularly than I would typically do because this is going to be hard and it's going to seem so imperfect so many times. But that's OK and it's still important to sort of trudge on. In that respect when I'm doing all of this I never think as far as any area of topics and history and laws that I can learn. There is no possible way I will ever think of it in terms of me especially being an expert.
And in fact I think that kind of frame of mind number one rubs completely wrongly with how we’re trained in sort of typical law school kind of ways; like somebody's a specialist in an area or they have an expertise in something or they practice this area. And I just find in all of the heavy lifting that is exciting and important to do in this area there's no way I can ever have that kind of frame of mind about it because I will miss the moments where I have to still be humble about the mistakes I'm going to make, where I'm going to find out some really important teachings on year and some even more important teachings the next year.
It's like I think in all of the sort of tactile and sort of content things this call is asking for it's also for sure asking of me to have a method, an attitude, a spirit that is welcoming of others and welcoming of me [laughs] when I'm struggling and feeling like I'm about to fall.
Brad Regehr: A welcome perhaps you could say non-optional moment of levity from Signa Daum Shanks that underlines the necessity for self-care and working together particularly when confronted with daunting to seemingly unbearable tasks. On that note let’s move on to part of my conversation in Call to Action 57 Aboriginal Crime Relations with Maggie Wente and David Nahwegahbow. Call to Action 57 calls for governments at all levels to educate civil servants on the history of Aboriginals peoples in Canada, treaties and Aboriginal rights, indigenous law and Aboriginal Crown relations.
I do note 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 Went: 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, you know, 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 that – 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 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, you know, 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, you know, the top of the civil service all the way down to, you know, 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.
Brad Regehr: 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 Nahwegahbow: You know I'm not so sure about that. I’m not really sure. You know I'm working on a few cases right now. I think the judiciary has got to be prepared to be more forceful. You know 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, right. 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 like of the Tsilhqot’in case. They did issue a declaration, the first of its kind on Aboriginal title. I think the courts have got to be more willing to be more forceful with government because governments, politicians, and the people that worked for them are still; they’ve still got too much room to manoeuvre, right. They’ve 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. I’m talking about Indian Affairs, what's called CIRNA now and ISC I guess it is, Indigenous Services Canada and Crown Indigenous Relations Affairs. They still don't have within their system a healthy attitude about the rights of Indigenous peoples.
Brad Regehr: The editor’s cut has to come somewhere in an episode such as this and we’re at a good point here to turn to my discussion on Calls 43, 44, 45, 46 and 94 which deal with the United Nations declaration on the rights of Indigenous peoples. I spoke with Aimee Craft and Breda Gunn. So the action plan, so we’ve mentioned that, to you what does the action plan look like? I know there’s been some criticism that it’s – the timeline says three years to create an action plan but what does an action plan look like, you know, at the end of the day, Aimee do you want to have a –?
Aimee Craft: I think Brenda can go first on this one, I’ll jump in.
Brad Regehr: Oh OK, Brenda?
Brenda Gunn: It’s a good question and I have a really good cop out answer. A national action plan will look ideally how different Indigenous peoples want it to look, right. And so it's hard for me to say a national action plan should look like X or Y, but that's probably not the most useful answer to our listeners. So one of the things that I have been thinking about is that the development of the national action plan, again, really needs to be regionally specific, needs to be on a nation-by-nation spaces so that there's opportunities. But importantly I think the national action plan has to look also holistically at the rights. And so we can't prioritize civil and political rights at the expense of economic, social and cultural rights.
Particularly, I think, after the national inquiry we want to ensure that economic and social rights which have been recognized as key protectors for Indigenous women, and also important for protecting Indigenous women against violence, that those are given equal priority and consideration to other rights as well.
Brad Regehr: Aimee do you have a view on the action plan?
Aimee Craft: Yeah I think that what's laid out in the legislation actually is a very interesting guide. So there are two elements of the action plan. First are measures that are going to address, you know, past and ongoing in justices and kind of bring us into a sphere of respect and understanding good relations. The second measure is really about that oversight remedies and accountability with respect to implementing the declaration. So I think there are two things, and in my view this mirrors and echoes a little bit of what the TRC has said, which is, we need to repair past harm. We need to address systemic discrimination in a variety of different ways. And then we need to build some mechanisms to ensure that there is meaningful implementation of the declaration.
Brad Regehr: I’d like to wrap up this look back at my conversation in Calls to Action with an excerpt from my discussion with Robin Sutherland and Alyssa Bird.
Alyssa Bird: I was one of the [unintelligible 00:47:48] who was very, very fortunate enough to get post-secondary support from my community, and in the sense that they covered tuition expenses and gave me a bit of a living allowance and things like that. I often – I find that a lot of students have a hard time admitting that especially in a place like law school, because what ends up happening is that you hear the prevailing stereotypical narrative like, oh indigenous people always get free handouts and things like that. But I usually, whenever somebody had asked me I would always say upfront like, “No I’m very fortunate enough to get support from my community” and I would take it as an educational moment where I could teach them like, you know, it’s not always a guaranteed funding first-off.
Each First Nation community has their own funding structure and policies around applicants and how that process is done. And those policies and things that are in place are in place because of the scarcity of funding. And things like where I have to renew for funding every year, I had to report on what my GPA was every year, I had to give updates to my student advisor to what courses I was in. And if I was – when my GPA for one of my courses – like this all through undergrad and not just through law school – but if some of my GPA were getting kind of low on certain things they would do a check in and kind of like see what’s going on, do you need other supports.
And so when it came to the financial stuff I felt very fortunate that I was able to get that, because that’s something that if I hadn't had it I would not be in post-secondary education never mind professional degree like this, if that wasn’t offered to me.
Brad Regehr: Other than the financial aspect what else did you need to go to law school?
Alyssa Bird: My friends joke around a lot of times, like, we needed scheduled crying times. [Laughs] I personally would not have survived law school without the supports from my indigenous legal colleagues and who are now my best friends. That’s Raven-Dominique Gobeil, Danielle Morrison, and [Darrell Dick 00:50:15] because they are other indigenous students with me who were in my – who entered law school at the same time. And if I didn’t have the supports of other indigenous law students at the school I would have – it would have been a completely different experience. I probably would have just like kept to my studies, gone to school, came back and just did my own thing. But having the support of other indigenous people in my year was a lot of help.
Brad Regehr: So was law school a comfortable place for you?
Alyssa Bird: No and it was not a comfortable place for a whole bunch of different reasons. One of them, again, I think you brought it up before of how the economic and class background of a lot of people entering law school is very much different from your standard indigenous student entering the post-secondary and professional degree. There are names for students who are second or third generation of lawyers and judges, we call them legacies. And those are – the people who come from that kind of background are very, very much different than an indigenous student. So not only is that a student aspect but also the stuff that is being taught to us.
Personally myself because I grew up very strong and close with my grandparents and my Midewiwin Anishinaabe teachings that I was very aware of what I referred to a lot as indigenous legal traditions. And entering into law school and being taught about the common law system and how that structure comes into place in building the Canadian legal system was really tough, because again, you're hearing constantly, “Well this is a rule of law, the rule of law.” But that’s the rule of law as it benefits Canadians and Canadians – the Canadian colonial system.
And that was built on top of – not on top of, it was built disrespecting indigenous legal systems. So that was another real challenging thing of trying to not reconcile two but like thinking about the systems that are in place and how they're so different.
Brad Regehr: And yet indigenous legal systems, in my view, form part of the legal fabric of Canada alongside the common law and civil law systems. But it’s not a –
Alyssa Bird: I just want to say, it’s not held with the same respect.
Brad Regehr: I'm just going to ask is there anything either of you would like to add or say? I’ll start with Robin.
Robin Sutherland: There is a couple of things. I just wanted to, I guess, when we were talking about the supports, I think one of the biggest supports that I want to reiterate that Alyssa did mention is that peer support. I mentioned family support but I think the support of peers is super-important. I’ve seen that at the law school at Lakehead. Because we’re such a small faculty, we admit 65 students per year, the students really form a tight‑knit close community and they really do rely on each other for a lot of support. And I find that it gets them through a lot of challenges that they might not even bring to me or my colleagues at the law school.
So I think peer support, again, whether through your community of the law school or through a larger indigenous community like the Indigenous Bar Association does a great job of connecting indigenous students with each other. Again, back to the, I guess, legacy of the residential schools, I just wanted to make one point about that as well. We mentioned the varying impacts on communities and families. I wanted to give one example of my family. My mother and her two brothers both – they all attended St. Anne’s in Fort Albany. It was one of the notoriously worst schools in Canada. And they all have been affected in different ways. One of them is living a very professional life despite other issues with alcohol and substances.
And one – on the other type of spectrum is, I think, the most affected, struggling to live a normal life, going in and out of jail, dealing with heavy substance and alcohol issues. And another is kind of maybe further on his healing path. He’s kind of gone to the – reconnect with the land and its traditions, and is focussing on the spiritual side of himself. And I think that is kind of the key to his success in dealing with a that legacy of residential schools, it’s focussing on yourself, taking care of yourself before you can take care of others. I think that’s true in the legal profession as well; you need to pay attention to yourself and take care of yourself before you can hope to help others. I’ll just have to leave that thought with everyone. Miigwetch.
Brad Regehr: Thanks Robin. Alyssa, anything you want to add?
Alyssa Bird: Yeah, that’s really nice words that you shared Robin, thank you for that because I, again, resonate a lot with some of that stuff with having being a second generation residential school survivor myself with my grandparents and extended relatives. I believe we’re entering – not entering – we’re starting to see a change in a lot of the legal professions’ approach to issues related to the Call to Actions and just an overall general kind of opening your eyes a little bit more to the issues around racism and all those types of things. And so what I'm experiencing and have been experiencing and kind of further promote has been working with people within the legal system to do better and know better.
Brad Regehr: I’d like to thank all of my guests in the Conversations on Calls to Action Podcast Series. In this episode you heard John Borrows, Naiomi Metallic, Harold R. Johnson, Stacey Soldier, Dr. Val Napoleon, Signa Daum Shanks, Maggie Wente, David Nahwegahbow, Brenda Gunn, Aimee Craft, Robin Sutherland, and Alyssa Bird. I’d very much like to thank you the listeners for your interest and for lending us your ears, and Julia for getting me back in front of the CBA podcast microphone.
Julia Tétrault‑Provencher: Thanks a lot Brad. We kept this lovely exchange between you and Signa Daum Shanks for the end.
Brad Regehr: And Turtle Mountain an area I’m very familiar with myself being here in southern Manitoba.
Signa Daum Shanks: Yeah so I don't know if our grandmas got their haircuts in the same place but whenever I was with my grandma we'd go to Melita and go to the Turtle Derby in Boissevain.
Brad Regehr: [Laughs] The Turtle Derby takes a very long time to complete.
Signa Daum Shanks: Yes it's a very slow event. Very slow event.
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