Julia welcomes Jennifer David from NVision and Andrea Menard from the University of Alberta to discuss the CBA and NVision's highly regarded PD course, The Path.
The Path - Your Journey Through Indigenous Canada. Module 6: Indigenous Peoples in the Criminal Legal System.
Jennifer David is a senior consultant and leads an area of service called Truth and Reconciliation at NVision Insight Group, a majority Indigenous-owned company with First Nations, Inuit, Metis and non-Indigenous shareholders and staff. From Omushkego, Jennifer is a member of Chapleau Cree First Nation and has a journalism degree from Carleton University in Ottawa, where she currently lives. She oversees the development and delivery of all Indigenous cultural awareness learning opportunities under the banner of The Path.
Andrea Menard is a Métis Nation of Alberta citizen who has worked for various organizations that range from academic, government, Treaty-making, and legal non-profit and legal regulatory work, and teaches Reconciliation and Lawyers at the University of Calgary, Faculty of Law as well as In Search of Reconciliation Through Dispute Resolution at Osgoode Hall Law School. Co-founder of the Indigenous Lawyers' Forum, an Alberta-based networking group for Indigenous lawyers, legal academics and law students, Andrea is also on the Board of Directors for the Alternative Dispute Resolution Institute of Alberta (ADRIA), and on the Canadian Bar Association's National Indigenous Advisory Group - Criminal Justice.
Michael Michel on LinkedIn: I'm happy to share that my third publication, titled "Indigenous…
Canadian Bar Association - Understanding the Truth and Engaging in Reconciliation (cba.org)
Bigstone Restorative Justice | Justice réparatrice de Bigstone – RJ Pilot (rjalbertacourts.ca)
John Borrows, Recovering Canada: The Resurgence of Indigenous Law - McGill Law Journal
further reading:
Overincarceration of Indigenous people: a health crisis | CMAJ
Indigenous Peoples and the Criminal Legal System – Jennifer David & Andrea Menard
[Start of recorded material 00:00:08]
Julia: Welcome to The Every Lawyer, my name is Julia Tétrault-Provencher. And please welcome with me our guests today, two of the people behind the CBA and NVision’s highly regarded professional development webinar, ‘The Path, Your Journey Through Indigenous Canada,’ Jennifer David and Andrea Menard.
Jennifer David is a senior consultant and leads an area of service called Truth and Reconciliation at NVision Insight Group, a majority Indigenous-owned company with First Nations, Inuit, Metis and non-Indigenous shareholders and staff. From Omushkego, Jennifer is a member of Chapleau Cree First Nation and has a journalism degree from Carleton University in Ottawa, where she currently lives. She oversees the development and delivery of all Indigenous cultural awareness learning opportunities under the banner of The Path.
Andrea Menard is a Métis Nation of Alberta citizen who has worked for various organizations that range from academic, government, Treaty-making and legal non-profit and legal regulatory work. And teaches Reconciliation and Lawyers at the University of Calgary, Faculty of Law, as well as In Search of Reconciliation Through Dispute Resolution at Osgoode Hall Law School. Co-founder of the Indigenous Lawyers' Forum, an Alberta-based networking group for Indigenous lawyers, legal academics and law students. Andrea is also on the Board of Directors for the Alternative Dispute Resolution Institute of Alberta, ADRIA, and on the Canadian Bar Association's National Indigenous Advisory Group, Criminal Justice.
This is The Every Lawyer presented by the Canadian Bar Association. Hi everybody and welcome to The Every Lawyer Podcast. First, I would like to begin by acknowledging that the land on which I'm a visitor, is the traditional unceded territory of the Huron-Wendat people, I'm in Quebec City right now, Jennifer, where are we calling, where are we calling you?
Jennifer: I'm here in Ottawa, where I am on the unseeded and un-surrendered territory of the Anishinaabe Algonquin.
Julia: It's a real pleasure. And you, Andrea?
Andrea: Hi, I am a guest on the west part of Treaty Six Territory in Amiskwacîwâskahikan, which means Beaver Hills Lodge, the English word is Edmonton, Alberta.
Julia: Thank you very much, thank you both for being here today. Before getting into more of a conversation about, well other issues, but for The Path, I don't know if one of you wants to first talk to our listeners, what exactly is The Path?
Jennifer: All right, well, I'll start with that then. So, first, Jennifer David [unintelligible 00:03:10], I just have to explain a little bit of my background to get to The Path. So, I am from Omushkego, so my traditional territory is in Treaty Nine Territory where I was born and raised and I'm a member of the Chapleau Cree First Nation. But I moved to Ottawa many years ago to go to Carleton University, where I got a journalism degree, and so I have a background in journalism and communications. And I used to be the Director of Communications for the Aboriginal Peoples TV Network and this is relevant, because after I left APT and I became an independent communications consultant.
And then I joined with a larger consulting company, where I still work as a senior consultant with NVision Insight Group. And one of the things that I started doing about ten years ago, was in person, full-day workshops on, back then what they called Aboriginal Cultural Awareness, but it wasn't a main part of my work. And then the TRC, when it came out with their calls to action and their reports, they have several calls to action related to education and that education is on cultural awareness. It's also [unintelligible 00:04:20] bias and anti-racism. And I began to get more people interested and asking me if I did that kind of work, and so that's how we launched The Path.
We call it The Path, Your Journey Through Indigenous Canada. And we call it The Path, because of something that Senator Murray Sinclair said when he was chair of the TRC. He said, when they issued their reports and calls to action, he said, “We have described for you a mountain, we have shown you The Path to the top, we call on you to do the climbing.” And that's really what this kind of education is about, it is climbing a mountain. And so, we call it The Path and I call myself a guide, so I like to say that I'm a guide for people trying to go on this or going on this path and we're going on it together.
That was launched in 2018 online, and then CBA was looking for a platform and a course provider and they came across The Path and I met with them, and they were, they liked it, they really thought it would fit very well. And so, we started a partnership, whereby the CBA would be offering the course on the CBAs website, but the original impetus of it was partly from the TRCs calls to action. And then the reason why I explain my background at the beginning was, because the way that The Path, how it was originally developed, is it was a video-based course.
And that was partly because we had a big corporate client that had a lot of people that were going to take the course. But they weren't very computer literate or even had literacy issues, so we did not want a very text heavy course. And because I had worked at APTN and because of my background in journalism, I knew the power of media. And since I'm not offering this course as a subject matter expert, I'm offering this as education, I wanted to make sure there were as many voices of Indigenous peoples with lived experience of the things we were talking about in the course as possible. And that's why we ended up with a video-based course. We are revamping it, because taking a video-based course, everybody loves it, but part of the reason they love it is because it's easy.
And so, I want to make updates to the course, so that people actually have to do more work, it's a little more interactive. But I think the other reason why people have really resonated with the course as a video-based course is because of those video clips of people talking about their lived experience, which is a very important part. Cultural Awareness Education is not, it's not a tick box and it's not just one and done and there's your certificate and, wow, now I'm culturally aware. We have to reach people, we have to reach hearts and minds, that's what we need to be doing and the way to do that is by giving them that emotional connection to the stories that people are telling. So, all of that is to say, that's where The Path came from and that's why it was developed the way that it is.
Julia: I must say, as for one who, I watched it very recently, The Path, and the videos makes it very, you hear things and you hear the information, if you want, but then you have also the faces, the stories, the colours, everything is there. So, I think this adds a lot, I am a big, big fan of it. And I don't know Andrea if you want to add anything to what Jennifer just said.
Andrea: Yeah. Well, it is really important to talk about our indigenous backgrounds. So, I am Metis, originally from the Abolished Red River Settlement. My great grandmother went to day school and my family, my Metis side of my family, so I'm a Settler and Metis. So, my Metis side of my family suffered intergenerational abuse, a lot of hurdles and obstacles, racism in the way. And growing up white and Metis, I saw my white side of my family doing exceptionally well and my Metis side somehow faltering into abuse, addictions, not getting the job, not fitting into jobs.
So, growing up and seeing these two worldviews, I became really interested in justice. And I managed my way to get into law school, went through law school at UBC, then articled in a small town in British Columbia, because I wanted it not to be in the cities. So, I articled and then did Treaty negotiations in four Indigenous Nations and it really opened my eyes, because what I saw in court were just 99 per cent indigenous people. And I couldn't believe it when I first saw that, that was about 2006, and I mean, this has been going on for decades.
So, let's just fast forward, I'm a member of the CBA, and when the CBA said, “Oh, here, here's The Path for free, every, first 100 people or 500 people can watch it.” I just couldn't believe it and I watched it right away and at the time, and that was when Brad was President, of course, so it was really great to have an indigenous leader and then doing this. So, I thought, oh, this will be really good, because it's indigenous approved, right, so then I watched it and it just blew my mind. So, at the time, I was working for the Law Society of Alberta, as their indigenous liaison.
And I said, “You know what, this is it, I want The Path, I want The Path for the Law Society of Alberta, for lawyers to take to get educated upon.” I mean, it's just a great multimedia, multimodality type of way to learn. And then the pandemic hit, and it was great, because it's all online. And then I reached out, well I reached out to Jennifer, because that was, Jennifer was the one. So, Jennifer and I work together on the Law Society of Alberta’s, The Path with a mandatory education for, yeah. So, that's when I met Jennifer, was way back in the day.
Jennifer: Yeah.
Julia: That’s it, OK, because I felt like you guys knew each other, so that’s it. And how would you say, the success of it so far, do you feel, because I found a website, the [unintelligible 00:10:23] of Alberta, the Canadian Bar Association, of course, but then many other companies or organisations also seem to have subscribed to it, so I don't know if they made it mandatory. But have you heard some feedbacks of The Path and how it has been successful?
Jennifer: Well, I'll talk in general, and Andrea, maybe you can talk about the Law Society of Alberta, because there's an interesting side story about that one, of course. But for The Path, we've had, and I was just looking on, what we call, our learning management system, which is essentially the online platform where The Path lives. And each client will get their own sort of iteration of The Path, so they can track their participants. And I think we have about 200 separate sort of companies and groups that are taking The Path on our learning management system.
But we also have another handful of clients that have taken the entire course and are putting it on their own learning management system. And so, several of them have made it mandatory, in addition to the Law Society of Alberta, none quite so controversial. So, the Bank of Canada, for example, the Canadian Museum of History, for example, and there's several others who have also made it mandatory. Some again, have put it on their own system, some have lifted on ours, but in total, we probably have, we're probably coming up to 25,000 people who've taken the online course, maybe a little more.
Julia: Wow, OK, wow, I'm very, that's, congratulations, honestly. And still, I think that's not enough, because I think everybody should, but that's very, congratulations, yeah. And so, and Andrea, what is it with the, for the Alberta Law Society, yeah?
Andrea: The Law Society, yes. Well, you know how, lawyers, we don't like being told what to do right?
Julia: No, we don’t, no we don’t.
Andrea: Jennifer and I, when we were creating The Path for the Law Society of Alberta, we knew that the lawyers were going to be a hard bunch to convince that this is the way to go, this is the education to have, but it is never one, I just wanted to say it is a gentle way in order to pass the message along, right. It's a gentle way, the lawyers can do it on their own time, its videos, it's not saying you're wrong, you're bad, you should feel guilty, it's just a really nice, gentle message.
And I was responsible for just bringing it home to Alberta, the Alberta modules and then bringing it closer to the law and what we're doing in Alberta in regards to the law. What happened was, 51 lawyers petitioned the Law Society that we shouldn't have mandatory education and then there was a special meeting that happened and 3000 lawyers had to attend this special meeting. And then we had to debate, whether to keep the mandatory education or not.
Julia: Oh my.
Andrea: Yeah. So, but what happens is, I am a co-founder and co-lead of the Indigenous Lawyers Forum, which is a networking lawyers forum, it’s grassroots, it's indigenous-led. And we met, we met a couple of times, but we met just before the special meeting and my lawyer colleagues said, “You know what, I don't feel safe in this environment anymore.”
So, this is the fallout of what's happened with this huge, interesting debate that happened, but luckily, and most of lawyers, they voted three quarter majority to still keep The Path mandatory. So, it's still here, it's still here to stay, we are very grateful of that, but there are root causes of what's making people refusing this type of education and we need to really work on that, not only as a legal profession, but as the education systems, the health profession, corporate. So, that's what happened in Alberta just recently.
Julia: Interesting. Well, I didn't know that, but thank you. And I was thinking, when I was watching it, we should make it mandatory for [unintelligible 00:14:21] Quebec, but now I know that, maybe we'll see. No, I think that would be so relevant, so that's something I keep in mind, for sure.
Andrea: Definitely, definitely keep it in the back of your mind and make, so what we did, was we anticipated it, right. So, we anticipated it, so we made sure that this could flow through as mandatory education as much as possible. And yes, the petition happened and yes, there was a vote and it was The Path is here to stay, but just make sure that you anticipate that.
Julia: There is also this new module, so going back to the law thing [unintelligible 00:14:56], because I think The Path also, as you clearly mentioned it, Andrea, is very holistic in the sense that you don't only talk about law, but you talk about culture, you talk about history, you talk about education, so it really, it touches a lot of angles. And I think probably Jennifer, you have a say to, a say on that, because I'm sure you thought about all, how to make it, to talk about all the angles and not only law. But for this podcast, I would like to focus a bit on the module six, which was the indigenous Peoples and The Illegal Criminal System, it's a brand new one. And first, why did you come up with it?
Jennifer: So, I can tell you a little bit of the history about this one. I saw that the Federal Department of Justice issued a request for proposals looking for groups, non-profit groups that could teach people about, especially about Gladue, the Gladue report, Gladue principles, and that they had funding available for these groups. So, I was working at the time, because of course, we have this relationship with the CBA. And so, CBA, working with NVision, essentially I put together a sort of project plan and a budget and then CBA submitted their proposal, and then they were successful. So, now they had a budget to create this specific module and they had already had in mind that they wanted to add it to The Path, which they already have on their website.
So, we started a discussion about that and the very first thing that I did, which I learned from the work that I did with Andrea at LSA, is that it's imperative to have an active indigenous advisory group, who's very comfortable with the subject matter and can comment on it. And so, I don't know about the internal process, but I know that the CBA sent out a call looking for people to join and then Andrea is one of them and they were critical, because I again, I'm not a subject matter expert. And in the back of my mind, I was also thinking, obviously that I needed their expertise to build this module, but also building on what happened with LSA and the reticence for some people to take the course at all.
I wanted to make sure that those, the advisory group was front and centre, so that there isn't the kind of blowback to CBA saying, “Well, who did you get it to do this? Who created this module? How do you know what you're talking about?” right. So, it was, it had to be, it was very important that the advisory group was comprised of indigenous lawyers who work in this area and were very familiar with the topic, and so that’s how we started together.
And I can just, one more thing before, if you're going to ask Andrea was, again I'm not a subject matter expert, I am not a lawyer. The very first meeting that we had with the indigenous advisory group, one of the very first things that someone said and everybody agreed to was, because originally it was called ‘Indigenous People and The Criminal Justice System’. And the very first thing they said was, it is not a justice system, Indigenous people do not see justice, so we're going to call this the Criminal Legal System and we'll make a very specific note to explain why. And I'm like, right there, there's education happening before they've even started the module.
Julia: No, I'm so glad you raised that, because that was one of the things I wanted to talk about, because I really, really liked this little note saying, we made a choice not to call it a Justice System, but a Legal Criminal System. And for me, it was so enlightening, I was like, oh yeah, no, that's so right, there's no justice, it’s not a justice system. Especially, at the end of the module you’re like, yeah, no, there's no justice system, so very interesting. And maybe Andrea, you want to mention anymore, but also Jennifer, I just, I wanted to see, because I also saw the difference between this module and the other module, because you had, so I really liked that too, so I don't know if that's the updates you're going to do for the other ones, that’s very good.
Jennifer: Yes, exactly. What you seeing and anybody who takes module six through the CBA, and has taken the first five modules of The Path online, they will see a major difference and that's what we meant by, updating The Path so it's more interactive. And so, it will look more like what you see in module six for CBA.
Julia: And for people, also the LSA is the Law Society of Alberta, so just –
Jennifer: Oh yeah, sorry, acronyms.
Julia: No worries, also the TRC, the Truth and Reconciliation Commission.
Jennifer: Yes.
Julia: [unintelligible 00:19:23] people know, but yeah, Andrea, maybe you want to jump on that?
Andrea: Yeah, that's part of the magic of working for an indigenous company, well, a partly on indigenous company, NVision Insight Group, is that they're doing things the right way. And because Jennifer is indigenous and has done her work, she knows how to engage with other people, other indigenous people. And she knows how to say, “Look, you need to get an indigenous advisory group together, this needs to come from the indigenous perspective.” And then we work with Jennifer and we say, “OK, it has to be this way, it has to be that way.”
And so, coming from an indigenous perspective is really important for lawyers to learn, because often lawyers are so busy in their lives, they just don't have time to listen to the indigenous perspective. So, this module is about sitting back, listening, learning objectively about what actually is the system doing to indigenous peoples and why is it getting worse, from an indigenous professional’s point of view. So, there was a group of us, and we would meet periodically and work on the development with Jennifer together.
And it was really had a lot of synergy, I enjoyed meeting everyone from across Canada, the indigenous lawyers from across Canada. And yes, that was the first thing, Jennifer's right, that’s the first thing that we said, it was to change the justice to the legal and there's a lot wrong and let's begin to tell our story about Gladue. And the journey that people have to know, when they want to search for answers of why reconciliation really isn't working in the criminal legal system, and what they can do better.
Julia: I think it's fair to say that a lot of lawyers, especially non-Indigenous lawyers, and me, I include myself in that, into that, they will go into the module six and they will think that, oh yeah, great, we'll take, talk about Gladue and it's going to be great. And it's just such a great improvement, that's what I've heard. And, but then you listen to it, and you're like, oh no, actually, this is not that great, oh no, there are alternatives that are way more interesting and OK, no, I really need to learn about that.
I think you realise that there's so much more that has to be done and that there is, I mean you also hear a lot about over incarceration of indigenous peoples, you talk about it in the module and you also get to hear some lived experiences as well. And you just, you finish the module and you're like, OK, so what am I going to do now, what what's next, and you want to read more about it as well, and also about alternative to justice, which we will get into later.
But first, I'd like to hear your thoughts, Andrea, on what should be done? So, what should be done, should we move to or is it time to say that Gladue is not working and just move beyond it and should we done, should we do something? Yeah, yeah, OK, so let’s go, and what should be done, I'd like to hear you very much.
Andrea: This question has been posed to me throughout the last, I don’t know, few years that I've been teaching at the University of Calgary, Faculty of Law. And they're, “Andrea, Andrea, what should we do, what should we do?” And I, my simple answer is, “Throw it in a dumpster and light it on fire.”
Julia: OK, that's it.
Andrea: But let me tell you, so Gladue is not working, we all figured that out, by the end of this module you will too, when you listen to it. But we can't just throw it in the dumpster and light it on fire just yet, soi we need a hybrid or concurrent system, so that is the simple answer to the question. So, I can go into that a bit, but I don't know if Jennifer wants to say anything about her experiences in making this, The Path with Gladue and your thoughts.
Jennifer: I think the one thing that I will say, I'll actually relate it to something else, because people often ask me that too, because of course I also facilitate The Path and we have various courses in The Path. So, when we, when I offer this as a facilitated course and people say that, “Well, what should we do? This is terrible, we should get rid of it.” And I use a parallel, let’s just say for example the Indian Act, once people understand and see the Indian Act, they say, “Why do we even have this? We should just throw it in the dumpster and light it on fire.” like Andrea says.
But what an elder said to me many, many years ago is something that I've held all these years and I said that question to him when I was learning about it, I didn't even know what the Indian Act really was, you live under it, but you don't even realise what's in it. And so, the elder, I said, “Why don't we just get rid of it? Why is this still here?” right, and I was young and very sort of zealous. And he, and in his wise way, he said, “Well,” he said, “You're looking at the Indian Act like it's a tree, that you can just come along and chop down.”
He said, “Fine, you could chop down the tree,” he said, “But it's not the tree itself, yes, those are the outcomes of what's happened, but it's the roots of that tree. How do you uproot something that is long and wide and deep and we don't even know where those roots go? And you can't just uproot that tree, because A, again you don't know how big and wide and how do you do that? And then what are you going to do, you now suddenly have this big sort of gaping hole, are you just going to replace it with something that's as bad or worse?”
So, and I think that's the same thing that lawyers and people are trying to deal with when it comes to Gladue, because it's embedded in this system and the whole system is messed up, the whole system was colonial. But every lawyer, and you guys are both lawyers, you are working in this system. You've been trained in this system, you are basically looking at the law that was created in this system, right, and so how do you make changes for something that you're within. And I'll just use another analogy, because just like The Path is a lot of stories, indigenous people are always telling stories and making analogies.
And I use this as well when I do The Path, which is, I think, applicable here. And it was a cartoon that I saw, and I related it to sort of cultural awareness. And it was a cartoon of these fish, these two fish, one was obviously the parent and one was the child. And the child turns to the parent and says, “Mom, or dad, what is the ocean?” And then the parent is like, “How the heck do I explain?” right, it's everything, it's, you're in it, how do you explain and describe something that's just everywhere.
And so, to extricate and talk about Gladue without talking about the whole sort of system. And if you want to tweak Gladue, that's fine, but it's still going to be in this system and you can't, overnight, change these systems, whether it's the legal system or the health system or the education system. But the first step is awareness, it's being even aware that there is this colonial system and that we all need to be part of moving beyond it. What it looks like, is something we have to take generations to do.
But again, not being a lawyer, but I can see that people would want to take this course and say, great, I'm just going to understand, like you said, right, I'm going to understand Gladue and how I'm going to apply it. But the bigger question is, I mean Gladue was set up to address a certain problem, but the problem is not being addressed by Gladue, it's a bigger problem that needs a bigger, broader, wider solution.
Julia: And you know what, I think that's why also Gladue comes at this time in The Path, because you need to take module one to five, before getting to module six to very understand it. It's not, you cannot take it on its own, because you will not understand it. And Andrea, I don't know if you wanted to add to that?
Andrea: I liked your storytelling there, Jennifer, storytelling can also be our laws, our indigenous law, right. Everyone says, “Oh, they still tell their story now.” well that is our law, so we can’t just write it off and, because elders are so humble, and they're like, “I’m going to tell you a story.” Well, and you know what, it's law. So, a story that I tell is also about a tree and it's also about the roots. So, what we like to do in Western colonial society is add on to the branches, we're going to add on Gladue, we're going to add on cultural bias training, we're going to add on systemic discrimination, we're just going to keep on adding on. Well, you keep on adding on to the tree and the tree won't be able to see the sunlight, the tree won't be able to give oxygen and do that O2, CO2 exchange. What we need to do as a society is go deep down within ourselves and go to the roots, as Jennifer was saying, right.
And then within ourselves, we will find the truth, right, it takes us to really do the work. Why are we willfully blind to what's going on, why are we preventing ourselves from understanding the genocide of what's still going on in the prison systems, in the court systems, why are we still here. Part of it is going within yourself and finding out the truth, because it's a very difficult journey and a lot of people don't want to do it. But I want to tell you, underneath and in the root system, that's where the trees talk to themselves, we got to get down there, we got to, it’s hard to say, start to say a different dialogue with our root systems and come up with better and more equitable and sovereign ways in which to have these laws in Canada. Canada's just a young country, have these ancient indigenous laws come back to the surface.
Julia: Yeah, and bring them to the table, yeah. And would you say that to hire expert, indigenous experts and lawyers, that that could bring back a discussion maybe. And to have them around the table is maybe one way, when we talk about a hybrid or concurrent system or when we are trying to improve Canada's current legal systems. Do you think that right now Canada is taking the steps to do that with the TRC, with, also with the, how the Gladue system is working, are they talking about having a hybrid or concurrent system, are they talking to change that?
Andrea: Well, I'll say a few things here. So, not only indigenous people, but indigenous allies, because there's not many of us, because of, we weren't allowed in, and this, and this, and this, there's still not many of us practising. And usually what happens is, it's all on our shoulders, not only do we have to practice law, but we also have to create these systems approaches and heal the world as we try and make money as a lawyer, it's too much, right, and do it for free.
Julia: Yeah, yeah, also, yeah, because you just care about it, so yeah.
Andrea: Well, I mean, and yeah, and they don’t pay us for our knowledge.
Julia: No.
Andrea: So, yes, indigenous peoples, we have to collaborate, we have to come into these advisory circles. But I want to tell you, I push it back onto the allies, you know what allies, you can do the work with us, you can do your own work. Yes, don't come over and take over, they have to say, “Oh, how can I be a performative ally, I don't want to be a performative, how can I be a real ally, authentic ally?” I want to tell you, Michael Michel just wrote this article on "Indigenous Self-Government and Criminal Law, The Path Towards Concurrent Jurisdiction in Canada". And he is, I believe he's non-Indigenous, and I think he works or he works with Naiomi Metallic, a Mi’gmaq legal scholar, top in the country.
So, here is an ally, doing really good work, so I want to say, definitely allies are coming forward, they want to help, especially my students, my students, the younger generation, they're coming forward, they. So anyways, yes, reconciliation is not working, why isn't it working in Canada, it worked in South Africa, right. They tell me it's worked, my South African friends told me, tell me it's working in South Africa, because the majority of people are black in South Africa. Here we are in a colony, so indigenous people were only, what, sometimes three, sometimes six per cent of the population. So, the colonists, the settlers, they are not leaving, whereas in South Africa a lot of them left, right, in Africa they left.
Well, people aren't leaving in Canada and that's fine, but it’s a different type of reconciliation, because we framed it off the South Africa’s, off the Truth and Reconciliation, right. So, this is a different country and yes, it's come to the forefront, yes, these awful things happened, yes, we have to do better. But no one knows how to do it, why doesn't no one know how to do it, because they don't know indigenous people, why don't they know indigenous people, the cycle continues, because of colonisation, right. I don't know if Jennifer wants to say –
Jennifer: Well, I would add to that, and also things were different in South Africa, because it included reparations and land back, again this is another thing that nobody wants to talk about, right. We're not trying, no indigenous person is trying to kick anybody off their property or off their land or out of their house, but it's more complicated, because Canada essentially, because of the legal system we're in, owns. And again, think about how ironic it is when we say the word Crown land, right, Crown land, why is it Crown land and not indigenous, already First Nations land, that Canada should justify why they're using it.
But until we come to a seismic shift in the way we see our relationships with indigenous peoples, we're going to continue to have hash back, land back, and we're going to have people up there defending the land. And again, I always say, don't call them protesters, because when you see protesting, you see it in a frame of mind as if you're against something that's lawful, but really, it's land defenders and water protectors and people who are trying to remind Canada about what's happened in our colonial history.
And we do have to work on this together, reconciliation is not for indigenous people to do and it's certainly not for non-Indigenous people to do on their own either, so where's the place to sit. But because the British and French way is how Canada was created, it was created for British and French people and ways of thinking, and so to step back out of that and make room for indigenous voices is where reconciliation is hard. And that's what Senator Murray Sinclair said, he said, “Reconciliation is difficult and it's uncomfortable.” If it's not uncomfortable, what are we really reconciling, right?
Julia: That's true, and I like what you say there, I would say they also, they are human rights defender as well, because that's all about human rights at the end of the day. There's a sentence of Wab Kinew in The Path that says, “Don't let reconciliation be a second chance at assimilation.” And for me, it was so interesting, because I think sometimes, we often, reconciliation, we want reconciliation, so let's do reconciliation, no matter what. But it's not no matter what, no, it's like you need to really take a step back and stop denying also, because I think there's a lot of denial and that's why it can be uncomfortable, but you need to do it. So, I'd like to also hear your thoughts on this sentence, because for me, it was so strong, it was such a strong one and I liked it so much.
Jennifer: Yeah, and me too, and when I first heard him say that, I was like, ooh, this is really powerful. But and again, this may throw another sort of wrench into things, but in indigenous circles, many people don't even like this word, reconciliation, because again, I have a journalism degree, but I also have an English Literature degree. So, I’m a word smith and words matter and the word reconciliation, if you used it, let's say, in the context of a marriage and somebody needs to go to, they need to go to marriage counselling, because they want to reconcile, what they mean is, they want to get back to a place where their relationship was stable and they loved each other and there was, they were in a good place.
When in Canada's history, were we ever in a good place, what are we reconciling to. So, that's why I think this word gets used and people don't have the same definition of what it even means. So, I'm not saying we throw it out and use anything different, I don't have an alternative word, but I think we need to understand that. Another reason why reconciliation is not working, like Andrea said, is that people don't even know what they think reconciliation is, if we can't even come to the same basis of understanding what do we mean, when we say reconciliation, how can we get there.
Andrea: Yeah, and that's the thing. So, people are calling it conciliation, people are just outright saying, and these are top indigenous lawyers and leaders, they're just saying, reconciliation is just assimilation, is another assimilation and its policy. So, we have to really be careful as allies and Canadians that we're not recolonizing. And this is a really careful line that people have to ask indigenous peoples and consult with us, all the time on, am I doing this right, right.
They have to be open, they have to be ready for uncomfortable conversations and they, because it's going to take incredibly hard work. And I'm talking about, I'm not only talking about self-work, I'm talking about systems work too. And a lot of people don't have the ears to listen to that, because you know what, their lives are going great, so why would they change that, right. So, I'm trying to say in my presentations, your life is great, because what you've earned has been illegal, basically.
Jennifer: Or that it was built on the backs of a system that benefited them without them even realising it, to the disadvantage of indigenous people.
Andrea: Yeah, their passivity and complicity, their willful blindness in it all, because things are going great, perhaps, in their lives, so why rock the boat. That's the greatest question of them all, when I'm trying to talk to people and convince them of different approaches, of ways of looking at things, of ways to change the system, why bother when it’s working for them.
That's why we need more indigenous leaders and indigenous lawyers and indigenous navigators, like Jennifer, around to say, “OK, OK, we will help you, we understand what's going on in the criminal legal system and in courts and in the prison system. We will help you with your systems in order to, not repair, but make them better for now.” Because right now, they're just completely in a western modality and it's all about punishment and it's nothing to do with indigenous anything. Canada is a multi-juridical country, we have civil law, common law and indigenous laws and it's time for lawyers and judges and leaders to start to use indigenous laws.
Julia: I could not add anything to that, I totally agree, I think we could even stop there, but I still have many more questions to you, so, and I will still take that time that I have with you. So, it's, we should not see reconciliation as recolonization or, and I feel like sometimes we are just doing stuff again, and I really had that feeling when I was watching and listening to The Path. There was a segment about residential schools, which was also very interesting, very shocking, as well. And then you also hear in the last module or the new one, about all the incarceration in the prison system. And you kind of feel like the prison system might be the new type of residential schools or not the new, but just another way to punish and to, yeah, hurt and assimilate indigenous people again.
Because they just put them in prison and the numbers are incredible, I don't have them with me right now, but it's just, it's striking. So, I'd like to hear what's happening in general, and so you send to us this APTN report, about the Joey Toutsaint, and you shared it with us before this episode. And there's this quote of Joey Toutsaint saying that, “And it's just, I don't know what to do sometimes, I'm trying hard to get the help I need and I don't know, it's just there's no help in here, none at all.” And he has spent 2180 days in solitary confinement, which is now called administrative segregation. So, what's happening exactly, I know it's a broad question, but what's happening in jail right now in Canada?
Andrea: Well, genocide is happening. So, people are saying, the child welfare system is residential school, because all these kids are getting sent there and we're getting targeted, as well as the penal system. So, there's two genocides happening in Canada right now and I wouldn't even go and call it the new residential school, it’s just plain, straight up genocide. So, what's happening is, I want to go way back, before, when we do this work, we go forward and then we go back, we go forward and then we go back.
So, genocide in the UN Convention, is a narrow definition and we haven't done enough work and research on cultural genocide, right. Because from a Western viewpoint, they have to indigenize the UN Convention, they have to, people have to learn how to indigenize in order to widen the scope of what is happening. And because we don't have the tools, as a Western nation, to understand what's going on, we're up to this point now, where it's just plain, straight up genocide, because we haven't done any of the preventative measures. The really striking thing about the video that, on APTN was there’s, there was no indigenous people working in jail, the people that were making the decisions, they weren't indigenous, so that's a problem right there. I don't know if Jennifer has anything to say.
Jennifer: I think, again not being a lawyer, but the same thing, it's what you said earlier, Andrea. And I'm actually working with another law society right now to create some provincial specific modules. And that's one of the things that they wanted to make sure that they got across, they said, “Indigenous people are subject to the law, but we are not the lawyers advocating for people who are subject to the law.”
And so, you're going to continue to get this kind of attitude and Andrea talked about the reason why there are fewer indigenous people wanting to be lawyers. And not even talking about the barriers, but again, talking about this colonial system, that it's a, I mean all kudos to indigenous people who are lawyers, because man, you got to wear the, wear a kind of armour to be able to go into battle in that system. And that's certainly not for everyone, so that cycle is going to continue.
Andrea: Well, that's why I call on allies too, is because they could help us, because we're getting tired and cranky, so we need allies, right, who have the talent and who have the objectivity, who know how to be friends with indigenous peoples to say, “Hey, look, am I doing this, right? Oh, hey, I'd like to have an indigenous advisory board with me all the time, day in, day out to say, am I doing this right?” Yeah, so.
Jennifer: Yeah, that's right, yeah, for sure.
Julia: Yeah. And pay you, pay you on that board as well.
Andrea: Yeah
Jennifer: Yeah. And I don't know if your listeners remember, but NVision was asked to work with the CBA to create the Truth and Reconciliation toolkit. So essentially, give some tools to help lawyers to do this sort of, to try to come along and invite indigenous people. And this idea of being an ally, people throw this word out all, and I've tried to read up more on it, because I don't really even understand what people mean by it. But I did hear one thing that I think is relevant here, and someone was writing about this idea of allyship, and they said, “Don't be a bystander be an upstander.”
So, we, and when we say upstander, we mean stand up in those spaces where indigenous people are not for indigenous peoples and indigenous values. But it also means standing up and stepping aside, because where are the spaces where indigenous voices are not being heard and Andrea just mentioned, right. In that prison system, in the Department of Justice, in running the law firms, in developing the policies, where are the indigenous people there to add that voice. Because they're not there, because others are there and haven't made that space, but what does that look like, it's not comfortable again.
So, all these systems, things are moving ahead and changing at the same time as, again as I said at the beginning, hearts and minds are changing, so they're all, they are moving forward. And I choose to be hopeful, even though, as Andrea said, we look back and we look forward, it is one step forward, two steps back sometimes. But I like to, I really choose to say that we are moving forward with those Canadians and allies that are willing to first listen and then figure out what their role is, not to lead again, because that gets back to what Wab said, right, we, this is not a second chance at assimilation, so.
Julia: No, no, and totally. And I think one of the ways is also to share that podcast everywhere and to share The Path to all your fellow lawyers and colleagues. And also if you are part of a, like [unintelligible 00:44:55] Quebec or any other law society, to share it and to share The Path and maybe to try a way to not to make it compulsory, I think that's the goals a lot of lawyers should try to seek. And also, when we talk about a legal system, there's something I really want to I don't know if you have any thoughts on that, but we talk about transformative justice.
And I'm very interested about this and I think a lot of my colleagues are in general, and people are interested to hear about transformative justice. And also, what we call restorative justice, which is not the same, but all those types of different justice, I will not say, it’s just the alternative, but just different, yeah, justice, that we can seek to have. And I don't know if they are the type of justices that are being pushed forward by First Nation, indigenous people, or no one at all, I don't know. But maybe I'm really asking here, is it something that could be interesting to look into more and to, yeah, to use as a tool to address some of our injustices that are being mentioned?
Andrea: It's a good mid-step into creating concurrent jurisdictions, where in the criminal justice system, we have the federal and then we have an indigenous one. I was on the Bev Brown, Alberta pilot project, Restorative Justice, where we implemented restorative justice in policies to say, OK, look, you can do a restorative justice, but. And same with the indigenous courts, I've sat on a few planning meetings on the indigenous courts we have in Alberta. OK, so what happens is, these are guilty courts.
Julia: Yeah, that's so weird, by the way, that, yeah, yeah, yeah, I know, can you just explain that to our listeners, because I've also, this idea, but go ahead, please just?
Andrea: Well, they have to plead guilty in order to appear before the Calgary Indigenous Court, in order to appear before Edmonton Indigenous Court, in order to appear before any court and get the help, indigenous help, which is like a hub model, right, where all these organisations are around a table and we get, they get the help they need, but they have to plead guilty. And then with restorative justice, you still have to plead guilty, no matter if it's from an urban community, a white community, or an indigenous community, you still have to plead guilty.
So, it's not getting to the heart of the matter, it's not getting to the base of the tree, it's not getting to the roots of the matter. It's just like stuff placated on top, being complicit saying, OK, we're going to pretend that we're really cool and practising reconciliation by applying more on top. So indigenous people, you have to plead guilty, then we can help you a bit, right, so.
Jennifer: But we're going to tell you how we'll help you.
Andrea: Yeah. So, I've been involved in some restorative justice programs here, some indigenous restorative justice, and it does really help. Big Stone Restorative Justice, I've been involved with them, they're located four hours north of Edmonton and they do a really good job. Because they have a number of elders there, they go to, the person goes to counselling with the elders, they also do Western mental health counselling. So, there's a blend of the two worlds that are actually, it's actually working together. But this is a community that cares and they're doing really good work in facilitating restorative justice, so that it works for their community. It does work, but again, it's, the system is broken, we have to have concurrent systems.
Jennifer: Yeah, yeah, yeah. And I would say exactly, again not being a lawyer, but using my English literature hat, this idea of restorative justice, I mean you want to restore something that was still a colonial, within the colonial system, right. What I've heard, and I think it was John Borrows who was speaking, and I heard him talking about, making sure you understand its indigenous law. The difference between restorative justice is the difference between Aboriginal law and indigenous law, right. So, restorative justice is still within that criminal legal system, but it's applying on indigenous lands and making sure you get that indigenous support within the system.
But a parallel and a different way forward, as Andrea says, is indigenous-led, using indigenous ways, indigenous laws to create things from the beginning that are not within that colonial framework. That's a very different way of approaching things and how do you get the system to buy into that or to say, oh yeah, sure, go ahead and do that. I mean, no government, they hold the purse strings, they hold the policies, they hold the laws, and so it is hard to move that forward. And again, I'm not speaking as a lawyer, just in general doing this work in cultural awareness, to get them to see outside the framework that they work in.
Andrea: So yeah, one more thing, is that the government has implemented the Indigenous Languages Act and the Act Respecting First Nations, Metis, Inuit Families and Children. So, that is a way, and Michael Michel talks about it in his paper, that is a way to start to implement an indigenous law underneath, with the Criminal Justice System concurrently. So, I mean, it could –
Julia: Yeah, yeah.
Jennifer: And we didn't even talk about UNDRIP, right, what that's going to look, the UNDRIP Act, what is that going to look like, right.
Julia: Yeah, I'm wondering that as well.
Andrea: I know, well with the routines of what I've seen the government's do, they'll just ignore it, right. But I really liked how British Columbia has DRIPA, so the DRIPA Act, the UNDRIP act. And they're doing really, really more progressive things, I'm liking what they're doing over in that province, but I mean, we'll see, right.
Julia: For our listeners again, the UNDRIP, is the United Nations Declaration on the Rights of Indigenous People Act, which if I'm not mistaken, came into force in June 2021 and I don't know yet exactly what has been done.
Jennifer: Work plan, they have to have work plans by June and then start implementing them, which is an impossible timeline again, I can get into discussion about that, but I think they've set a very ambitious agenda. But people even have trouble with the UNDRIP Act, because again Canada's looking at it within their own sort of system and within, with the lens of the Canadian Constitution, right, and Section 35. That's not universal, that's not, anyway, so that's another discussion for another day. But there's a lot of these things, where I think we need to, we just need to question the questions, right, question the foundational ways we've seen things and have a different, and bring a different lens to that.
Julia: Yeah, try to get out of this ocean that we're in, so.
Jennifer: Yeah, right.
Julia: Yeah, totally, yeah. I think the first thing you said at the beginning, the first story was just so right for the entire discussion, because I feel we just need to step out of this ocean and to really have a different lens when we approach those issues. A final question that I would like to have, because we talk about what measures should be taken to, yeah, to be taken. But I would like to hear your thoughts about intergenerational trauma that we haven't talked about, and maybe it's not even, we should also have an entire podcast on that.
But what measures do you think should be taken at that time to have a legal system that is more sensitive to it, because I don't feel like it is at all. And I think the legal system, but I would say the entire Canadian institution and the [unintelligible 00:52:27] institutions are not sensitive to intergenerational trauma. I think some people don't even know what it is and some people don't think it exists, some people in denial, and maybe I would finish on that, I'd like to hear, if you have anything to say about that, I would like to hear it?
Jennifer: Well, I'll let Andrea speak, because she's a lawyer, but I will say, to understand intergenerational trauma, you need to do, people, Canadians need to do their homework, they need to get educated on Canada's colonial history. People say, “Oh you know what, how come I have to spend all this time doing cultural awareness?” But it was, like you said earlier, how can you do module six, if you haven't done the first five, how can you understand intergenerational trauma, if you don't understand the systems that were in place 200 years ago, that have led to where we are today.
Until we understand our history and that's why we say, “On this path.” and why Murray Sinclair said, “We've shown you the path to the top and you better start climbing.” And so, that education and that cultural awareness is that very first step, and as you do that step and as you get educated, you can come to understand what intergenerational trauma means. In the legal context, I leave Andrea to talk about that.
Julia: But Jennifer, I think you just proved that we cannot work in silos, I mean law needs also, all other people we really need, because we can, it cannot be only lawyers talking to themselves about what is intergenerational trauma for instance. So, it's very good that you step in, and we need that as well, so thank you.
Andrea: Exactly. Or law is devoid of emotion and that's problem number one.
Julia: That’s a huge problem.
Andrea: What I want to say about intergenerational trauma is that, lawyers have to be, they don't, yes, cultural awareness is really important, because lawyers have to be humble, right, they have to be humble in this work, but usually they aren't, so, and that's another systemic issue, right.
Julia: Problem number two, yeah.
Andrea: So, if you're not going to be humble, then at least be a good translator, so what is your indigenous client saying to you, right, really listen, are you going to be the top-notch translator in the court or are you not, OK. And if you can't do that, then have some accountability and have your workplace have accountability and other structures have, you have to widen your accountability scale, all right. You, people have to be held accountable to what they're doing in regards to the genocide, ongoing genocide of indigenous peoples, right.
Why when indigenous peoples are overrepresented in the court system and in the prison system, you know what, if you're not going to listen to being humble and being good translator, next is accountability. We're going to start to implement some accountability measures so that people and your firms and your organisations can be accountable to reconciliation and here's how. So, you don't necessarily, yeah, intergenerational trauma, it's known to be epigenetic, it's known to compound upon each generation, yeah, that's pretty brutal, it’s pretty sad. But what about white intergenerational trauma, what's the white cycle, the non-Indigenous settler cycle that I see it in intergenerationally is power and control.
Their power and control has upped its limits to absurdity, the APTN video that we all watched together, that was a bunch of non-Indigenous people omitting power and control to a psychotic level, with no indigenous people there whatsoever. So, what is the white epigenetic intergenerational transformation going, quit focusing on the indigenous people and saying, oh, poor them, so sad. People have to start realising indigenous people, we are strong and come at us from a strength-based approach and start to take us seriously. And start to look within themselves, what's your intergenerational, epigenetic coding that’s compounding upon each generation and what are you doing to rectify that.
Julia: I’ll finish on that, thank you so much. I don't know if Jennifer, because yeah, nothing to add to that, I don't know. Thank you very much, I don't know if you wanted to add anything, if there's a question, I hadn't covered that you'd like to cover or you would like to have a final thought. Otherwise, I'd like to warmly thank you for your time, Jennifer David, and Andrea Menard, it was such a great podcast. And thank you for this initiative of The Path, I will personally make sure not to be a bystander, but an upstander. And I hope and a lot of listeners will do that too. And I'll probably contact you, Andrea, also far too little tips on how to implement The Path as a compulsory.
Andrea: It sounds great, yeah, thanks Julia.
Jennifer: Thank you, yes, Mi'gwich, very nice to meet you.
Julia: Thank you very much. … If you would like to learn more about the difficult legacy of colonialism in Canada, check out, cba.org/truth-and-reconciliation. We have also posted links to the references made during the course of this conversation in the Episode Notes. Thank you for listening and as always, please feel free to reach out to us anytime at podcast at cba.org.
[End of recorded material 00:58:14]