An in-depth look at Bill C-92, an Act respecting First Nations, Inuit and Métis children, youth and families, with Professor Naiomi Metallic, which turns into a broader discussion on legislative reconciliation and the ‘braiding together’ of existing legal orders. For those interested in advocacy, Prof. Metallic also makes the case for academia as THE place to change the law, and with it, society.
“Legislative Reconciliation is Governments using legislative powers for good and not bad. The Indian Act, you might say, was the government using its powers for bad, for a very long time.” -Prof. Metallic
Professor Naiomi Metallic, divides her time between practice and teaching at Dalhousie University’s Schulich School of Law where she holds the Chancellor’s Chair in Aboriginal Law and Policy. She was part of the legal team that intervened on behalf of the First Nations Child and Family Caring Society led by Cindy Blackstock, a longtime advocate for child welfare and Indigenous children’s rights. The SCC referenced Prof. Metallic’s article, Aboriginal Rights, Legislative Reconciliation and Constitutionalism (dal.ca) , in their Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, and she is this year’s winner of the CBA’s Ramon John Hnatyshyn Award for Law.
Also mentioned in this episode:
Supreme Court of Canada - SCC Case Information - Summary - 40619 (scc-csc.ca)
Supreme Court of Canada - SCC Case Information - Parties - 39856 (scc-csc.ca)
Braiding Legal Orders | McGill-Queen’s University Press (mqup.ca)
We highly recommend The Path:
Canadian Bar Association - Understanding the Truth and Engaging in Reconciliation (cba.org)
Reach out to us anytime at podcasts@cba.org
Legislative Reconciliation – Naiomi Metallic on Legislating Indigenous Self-government in Child Welfare
[Start of recorded material 00:00:00]
Hello, I am Julia Tétrault-Provencher.
This is the Every Lawyer presented by the Canadian Bar Association.
Julia: In February of this year, the Supreme Court of Canada ruled that Bill C92, an act respecting First Nations, Inuit, Métis children, youth and families, was constitutional. Having received royal assent, it is now the law. Drafted both in response to the truth and reconciliation commission’s call to action floor, it contributed to the implementation of [unintelligible 00:00:55]. Bill C92 is a massive step forward on the path to reconciliation in Canada.
The legislation seeks to address the issue of overrepresentation of Indigenous children in child and family services systems while recognizing that indigenous peoples are in the best position to identify and implement solutions to this issue. Already on July 11th of this year, the [unintelligible 00:01:25] of First Nations, Chiefs of Ontario, Nishnawbe Aski Nation in Canada reached a $47.8 billion agreement on the long term reform of the First Nations Child and Family Services Program.
Today on the Every Lawyer, my conversation with Professor Naiomi Metallic about the context in which Bill C92 arose, the process of passing it into law, including defending it at the Supreme Court and how this can be an example or a very first step at least towards legislative reconciliation. You’ve never heard of that phrase before, legislative reconciliation? Well then, keep listening.
First, could you please, because you were very involved in that and we will get to it, but first could you explain a bit of the context and why it was necessary to have this bill?
Naiomi: I think that you touched on a lot of important points. I will roll the tape back just a little in terms of bringing us back. I think what’s important to understand, this is about the delivery of child and family services in First Nations communities, so on reserve. And these types of services really only started happening, let’s say in the 1950s. This was around the era of the creation of what we’ll call the social safety net in Canada and elsewhere, but you have the development of things like social assistance, child welfare where the state is playing a greater role in supporting families, children, but also they’ll step in if there’s a worry about neglect or abuse of children.
Now what happened in the indigenous context or in the Frist Nations context in particular at this time, not just with child welfare but with a variety of other essential services, housing, health, water, income assistance, there was a debate around this time when governments started doing this about whose responsibility this was when it came to First Nations on reserve.
So essentially the debate was well, the Federal Government said, well, these are services that have some role but it’s primarily the provinces who deliver these services and pay for them. So the Federal Government said it’s a provincial issue. And then the provinces said well no, you have jurisdiction over Indians under section 9124 of the Constitution Act, 1867. So it was a debate then, and this has continuously been a debate where really neither wants to fully embrace and take over and provide the services in a meaningful way. So they have debates with each other.
And in fact, for the different services I mentioned earlier, different approaches have been taken. But we’ll focus on child welfare. So what happened in child welfare is that there was an effort by Canada to unilaterally amend the Indian Act in an effort to get the provincial government to take this over. So that was by putting in something called section 88, back then it was section 87 of the Indian Act. But it provides that provincial laws of general application, subject to the terms of any treaty or any conflicting federal law, applies on reserve.
So that was the opening for provincial child welfare law to apply in indigenous communities or First Nations communities. But the provincial government sort of said, “Hold on, but that means you want our child welfare to go into the community and provide our services. And they’re like, we’re not going to do it unless you pay for it, Canada.” And at first that didn’t really happen. It took like another decade for this to kind of happen more expansively across the country where different agreements were signed between the federal and provincial governments for them to provide these services in First Nations communities. And you saw a whole range.
So in some places, you had provincial welfare agencies almost going into the communities and taking children on the slightest provocation. And that’s where you get the idea, you’ve probably heard of the Sixties Scoop, right.
Julia: Oh yeah, we talked about it a bit but you can remind me. We had a talk with Jennifer David and Andrea Menard about the meeting of the path. The CBA envisions [unintelligible 00:06:11] indigenous, cultural competency webinar which covers the Sixties Scoops in more detail. As Naiomi explains here, the scooping wasn’t limited to the 60s.
Naiomi: So the Sixties Scoop is when child welfare, provincial child welfare legislation started to apply. And when social workers would go into the community and essentially take children, they would be scooping them up. That was a reference to them scooping them up. Now in other provinces though, it was almost the opposite end of the spectrum, the provincial child welfare agency wouldn’t go in unless it was a life or death situation. So there was a real sort of polar sort of opposites.
But that was the way things were kind of happening in the 60s and into the 70s. But in the 70s and into tie 80s and 90s, you have First Nations communities raising the red flag about concerns about children being scooped out, often being placed in non-indigenous foster homes. Sometimes there were even – you can find these online – adds of adopting First Nations children from Canada and the US. It was crazy. So we get pushback from the First Nations saying, “Look, what we really need is for our own jurisdiction in this area.” This was the time there was starting to be more of a recognition of inherent Aboriginal rights and asking for greater control in this area and other areas as well.
That took some time to happen, but eventually in the 1990s, the Federal Government, with this pressure, did say, “Well okay, sure, we’ll do something. We won’t do exactly what you have in mind but we’ll do something where we will allow the creation of First Nations agencies, child welfare agencies who can deliver the services.” So this has often been called devolution, the devolution model, where the services devolved down to the First Nations level, to a First Nations agency, sometimes to the band level. And they provide the service, receiving funding from the Federal Government to provide the service.
The provinces are sort of part of this to some extent as well. Some provinces also sort of devolve. But it’s a federal funding model. And so many, many communities get into this. But there are still situations where the provinces were providing child welfare services and indigenous in First Nations communities. But many go into this devolution model. But what becomes pretty clear pretty quickly is this is not funded in the same way that the provinces are being funded to provide the same services in First Nations communities. It’s less than what’s happening elsewhere.
And so the staff were underfunding to support things like prevention, not there. And so what happens is what’s being funded is essentially the apprehension of kids. Because the money cannot be put into that, more money is being put into – or the money that is there is primarily having to be sort of emphasized on apprehension of children. So it’s in fact, ever since the Sixties Scoop, the amount of indigenous children that are taken into child welfare got really sky high overrepresented. And that’s continued, and sometimes the situation with devolution in the 90s, they call it the Millennial Scoops, but it continues. And the chronic underfunding of the devolution model is what was contributing to it in a big way.
So was provincial rules. It’s so funny because the provinces, essentially the way the devolution worked is that the feds said, “Okay you’re going to follow the provincial rules.” But these provincial rules were often not developed or thought about, or even with consultation of indigenous communities. And so they’re not really well developed. They’re developed in a model that thinks about the nuclear family as the model of the family, and they’re sort of Euro-Canadian concepts about childcare and things, and also just not align to the realities that exist in indigenous communities where all these other essential services, most of them are now under a devolution model themselves and also chronically underfunded.
And so it all sort of is this perfect storm of increased poverty and the impacts of all of that in child welfare means that more children are being apprehended. In on the scene comes Cindy Blackstock, a Gitxsan woman from British Columbia who was a social worker in the provincial system for a few years and then went to go work for a First Nations, indigenous agency and almost immediately saw the difference, just like the night and day difference between what they were able to afford, what they were able to do, what kind of services they were able to provide. And she said, woah, there’s something really wrong here.
And this woman has essentially devoted her life to addressing and remedying this issue which she’s still doing today. But her first sort of step was to contact the government and say, “Woah guys, there’s a problem.” And the government did what the government does, “Well let’s study the problem.” Okay so she does two reports with the Government of Canada, one in 2000 and one in 2005, clearly laying out that there’s a problem. And in that period, the government made small kind of incremental changes that did not really change anything.
So in 2007, she decided they’re not going to listen, I have to bring a Canadian human rights complaint. So that is what she did. She files a complaint, the government tried to have it struck out. So it took another nine years until there was a decision from the tribunal in 2016 upholding her complaint, finding that there was essentially significant, chronic underrepresentation of the services, which the government was aware of. And the government was there and said, “Well we provide something similar to what the provinces provide.”
And it wasn’t true. It was found that no in fact, it’s about 22% lower, and you never studied it. You don’t know. You say that, but you don’t. You know it’s less but you don’t actually study it to find out what is the scope of the problem. And then the tribunal also said, but even if that was the case, it doesn’t mean that it’s human rights compliant to just follow whatever the province does. They said substantive equality means meeting the needs and circumstances of indigenous communities and First Nations communities, including their geography, their cultural leads, and their day-to-day needs and the reality that they face.
So both sort of levels of that, that was found to be discriminatory. It also found that this concept of Jordan’s Principle had not been respected by the government. It’s a related idea and it’s to address the fact that there is not just chronic underfunding in this service, but in a variety of other areas like education on reserve, health and other areas. And the idea was that the government is supposed to avoid indigenous children being sort of trapped in a jurisdictional debate between the federal and provincial governments.
And I think it was in 2008 or something that the Federal Government said that it was going to allot money to ensure that Jordan’s Principle was going to be met. And Jordan’s Principle is actually based on a real case, a young boy named Jordan River Anderson who died in hospital without ever being able to live in his home community or near his home community because Manitoba and Canada fought over who had to pay for him going home and all of this stuff.
What was also found in the case was that Canada, although it had budgeted a bunch of money, $10 million or something, it had never sent a penny of it on Jordan’s Principle. So that was another basis upon which they were found to have discriminated. So I explain all of that because that is a huge part of the background of this. So once the decision comes out, there’s recognition that Canada has a lot to do. But Canada dragged its feet too. There have been several non-compliant orders and there’s a continuing non-compliance hearing going on now.
So in 2019 the Federal Government, because some people were starting to write about, well one of the ways to reform this, because the tribunal didn’t say, “You must do X, Y, Z,” and all of this to reform this. It said government, you’ve got to work with the parties, you have to figure out how to reform this. And so the government announced in 2019, because there had been a few proposals put out there, including the TRC call to action number four that said federal legislation in this area would go a long way to address some of the harms. And the legislation does a couple of things. As you say, and I’ll come back to this, it recognizes the inherent right to self governance. But it also creates national standards that are intended to ensure that for those communities that are still falling under provincial rules, that there are certain protections for indigenous children, families and communities as they go through that process.
So there are specific rules on that. And then as part of the solution as well is real self government or recognizing that indigenous people should be able to control child and family services. So it creates a framework. It recognizes the inherent right. That’s the first time it ever happened in Canada and it sets out a framework for how communities can create their own laws and then start delivering the service including entering into negotiations with the Federal Government and the provincial governments regarding things like coordination and funding of these services.
So it was around that time that the government decided it was going to do this and move forward with the legislation. But the case is so key I think, knowing that whole history and background because it’s more than just what the TRC said. It’s about alleviating that entire 70 plus years of a really problematic system.
Julia: Thank you so much. This is such a good background. There are so many things, I know. I think we needed to start with that. And not just like some questions first, because as you say, it’s been like 70 years where I feel like things were happening. So what is the effect that it left in the communities, because I feel like it was an issue, it was unresolved. You have children who were taken out of their families, the provincial, the Federal Government doing nothing. I’m guessing that there has to be some intergenerational trauma there, and trauma for people.
So besides the bill, besides everything, how is this being taken into account, and how do you think nowadays – is there anything that has been implemented? How are people living with that? What’s the impact you think it had?
Naiomi: In the Caring Society decision itself, there’s a line in it, I forget exactly where the original quote came from, but the tribunal says it, but that essentially the child welfare system, post 1950s into the 1960s and beyond, became the new residential school system. So at this time, you get the residential schools. This is around the time Canada was actually winding these down. The last one only closed in 1996. But they were being wound down to some extent, closing certain schools.
But in some respects, what was happening with residential schools, children being taken from their communities, losing that connection to their families. This was perpetuated in the child welfare system. So it has had a lot of the same traumatic intergenerational impacts that residential schools had and still continues today. So there’s been some class actions, and some of the listeners may know about that. There have been some on the Sixties Scoop, and there was a compensation. There have been class actions on the Millennial Scoop, as I call it. And that’s in the media these days too. There was a compensation agreement. But anyway, the parties are kind of going back and forth on it.
But it has had the same sort of impact, disconnecting people from their community, making it very difficult to reestablish connection. And it reverberates in a bunch of different ways today.
Julia: Thanks. And you also mentioned of course the TRC. And I read about the national standards, when I read the bill, so it was mentioned. But can you explain a bit what they are, because you mentioned them, they refer to it, but what are they exactly. Are they really specific? Are they already created? What are those standards? Where do they come from?
Naiomi: So they’re in the legislation. They’re like sections 8 to 16 essentially. It goes back to my earlier point about how provincial child welfare law may not in fact be thinking when they were drafted, when they passed, they don’t include provisions that recognize that indigenous families, communities and children will have distinct needs that ought to be addressed.
So some of the things that the legislation does, all child welfare legislation has a definition of what is in the best interest of the child. And decision making in this area really always focuses on best interest of the child, as do other areas of family law. But they introduce a concept of the best interest of the indigenous child. That puts a great emphasis on cultural connection, connection to language and community and cultural continuity. It also includes some provisions on substantive equality and sort of recognizing what that means in the context of indigenous children. There are provisions in there about notice to be given to the indigenous government that the child is from so that they can participate in any potential hearings and be notified of things that are happening so that they can have a say and make submissions.
This also is the same for people who may be caring for the child in the extended sort of kinship model, but may not be the parents, right, so aunties, uncles, grandparents may have a role. And so this gives them potentially a role to play and a say in these proceedings. What else? We talked about socioeconomic conditions in the First Nations communities. Well there’s a specific provision that says that an indigenous child cannot be apprehended solely on the basis of his or her socioeconomic conditions. They can’t just be apprehended just because of poverty, which sometimes has happened in the past.
Social workers have to show that they’ve taken all reasonable efforts in deciding to apprehend a child and determining where the placement is. There are provisions that specifically require that in deciding if a child does have to be taken, there’s a priority level in terms of who they should be put with, with the last resort being outside of indigenous communities. So the first resort is one of the child’s parents. And then after that, it’s somebody in their family. And if not that, then it’s somebody in their community. And if not that, it’s somebody in another indigenous community. And only after all of that has been explored should they be placed with a non-indigenous community if none of the other options are available.
So it’s those types of protections. And it’s all about really ensuring that those connections to community and to family, maintain. This history of breaking all of those connections.
Julia: Were there aer more, how do you say that? Not exchanges. I have the word in French.
Naiomi: Alors, dis le.
Julia: When you talk with people, did that do some -
Naiomi: [Cotisation 00:22:53]?
Julia: Cotisation, thank you. Exactly. Did they consult more indigenous communities when they did that bill?
Naiomi: Absolutely. So Canada says that it was co-developed, that it was co-developed with the assembly of First Nations and other indigenous folks. There are some folks who say it could have been better done, but with this legislation and with another piece of legislation, the new sort of approach is to co-develop these with the indigenous community.
Julia: Okay, that’s great. And can I ask you, are you satisfied with it?
Naiomi: Yes and no. I wrote some articles. You can find them if you’re Googling online. I think it, in some ways, it’s transformative. We’ve never had a bill like this before. In the United States, where they recognize far more indigenous jurisdiction than Canada has, they had something like this from the 1970s. So we were a little behind. And I think the minimum standards are really important, because that will ensure that this applies across the board no matter what province or territory. It takes a broad definition of who is an indigenous child, which I think is really important.
I actually wrote an article that the Supreme Court cited in the case about how this is an example of legislative reconciliation. I argue, and I do believe this firmly, that there is an important role for governments to play in supporting and implementing indigenous people’s inherent rights, which to this point they have not done. They’ve primarily left it all to the courts to do. And that’s actually a different approach than what the government does with respect to the charter. We can point to examples of same sex marriage and other examples where the government has acted to implement people’s charter rights.
But when it comes to Aboriginal rights, it’s almost like we think no, it’s either the courts or negotiation. There’s no rule for governments to be proactive and pass legislation. And I think that that’s wrong, and I think that there’s room to do this. And so it’s an early version of legislative reconciliation. There are things to learn. But it avoids people having to go to court. It avoids costly and lengthy negotiation. The biggest issues that I think I had with it in that article, and which I still have with it, are one, that it’s unclear about funding. It has a few provisions that touch on funding, but funding was obviously such a huge part of the last 70 years of what I call legislative neglect in this area, both governments fighting with each other.
It says that these services, when governments negotiate with First Nations, that – what is the actual language of it? I’m just looking at it right here. It essentially says that, they can be negotiated, fiscal arrangements relating to child and family services that are sustainable, needs-based and consistent with the principle of substantive equality. That sounds great. And I love that. It’s really important language, but it doesn’t say who has the plan. So it takes us back to: is it the Feds? Is it the provinces? Is it both together? What happens when they don’t agree and indigenous people are like, “Hey, we need this to be funded.” And UNDRIP even talks about state’s obligations to fund self government.
So there’s that. And I think I continue to just be concerned about governments’ negotiation tactics and how they may – they try to limit, they try to narrow. And often there’s not a lot of room for indigenous people to challenge that. You know, even with some of the negotiations happening now, I hear stories that they’re imposing confidentiality requirements on every group. So no group can talk to the other group and compare what they’re getting with the government and what this one over here is. So nobody knows, and so it allows governments to kind of control the narrative. And so I think that that’s wrong.
Julia: Yeah you have to be like [unintelligible 00:26:31], you know, same idea.
Naiomi: Yeah, exactly. I would have liked to have seen more on transparency and accountability. There may be a Supreme Court of Canada decision coming soon that will help us bring out more transparency and accountability. There was one on policing that went to the Supreme Court back in April, and we’re still waiting on the decision. But we intervened the Caring Society. I intervened with a co-counsel to sort of say, we need some standards in here, even if they’re not written in legislation, about how the government conducts itself in these negotiations with First Nations over funding. So we’ll see.
So those are what I think are some of the biggest problems. But it is sill a really transformative thing. I think this is something that government should be doing all across the board, on a variety of areas, both federal and provincial in different areas.
Julia: And you also advocated for amendments to the bill. And I saw that some were accepted, some were not. Did you receive an explanation for those that were refused? How does it work when you propose amendments? You just wait for them to see if it’s going to be applied? What’s the process? And those that were refused, do you mind it? Do you see that there’s room for it to change in another way? Where do you go with that?
Naiomi: So a colleague and I who both work in this area went and made submissions, I think both before the house and senate because it goes to both. And there are committees that are hearing it. And you raise your concerns. You raise your issues and it’s really up to them whether they bite on it or not, whether they’re convinced it’s an issue. And sometimes the committee might say, “Oh yeah, you should look at this.” And in fact, I think the committee did say on funding, it could be clarified, a few other areas it could be clarified. And it goes back to the government, and the government can decide to take them or leave them. There’s no explanation. They just kind of decide whether they want to do it. And essentially, that’s what happened in this case.
So some of those amendments for great clarity as we’re sort of suggesting, just didn’t make the final cut. I think some of that additional language around substantive equality got put in. So that’s not nothing. But there could be more.
Julia: And can I ask you now, have you already seen success stories on the ground? Do you see the bill, because now, where are we with that? Did it already have some concrete impacts, because now I guess it’s going to have to be implemented. And what do you see, if it hasn’t been implemented yet, what do you see are the first steps that must be done?
Naiomi: There’s been a lot happening since 2019. So I think these are starting to make a difference. Let’s just start with the national standards. A lot of cases where the national standards are being brought up, I think if you go on CanLII, we’re nearing about 200 some cases. There are still issues that are being worked out and we’re seeing some differences across the country in terms of interpretation. But I and my colleague who do a lot of work on this, we’re getting invitations from a lot of different groups, legal aid, a lot of judges are really interested in learning about this and that’s wonderful.
We actually created something called the Judicial Workbook where we try to – because judges have guide books – but it was essentially us trying to say like here are the questions that you would ask at each sort of step in an apprehension hearing to make sure that the act is being adhered to. So that’s available online if you were to look for it.
Julia: We’ll put the link.
Naiomi: So I think that that can be really helpful. It is making a difference. There are still issues of interpretation and questions that folks have about its application in some cases. On the indigenous side of the exercise of jurisdictions, we are seeing examples of that as well. I heard a really wonderful one from Peguis First Nation. The lawyer who helped them, he’s a First Nations fellow himself, Earl Stevenson, speaking, and he was just saying it was making a difference in the community. I forget the statistics, but they were sort of jaw droppingly like successful. But also that they had done stuff in their legislation that Saskatchewan had actually picked up and done more generally or broadly in amendments to the Saskatchewan legislation on child welfare.
So indigenous law making, practices are even sort of influencing mainstream, so that’s really cool. And there are more and more communities who are wanting to develop these laws and implement them. The only thing I would say, there are negotiations that are happening. In some places, there are some provinces who absolutely refuse to be a part of it, so the First Nation is only at the table with the Federal Government, Alberta, Quebec I think, and a few others. But there are others where all three are at the table and discussing this. I do think the decision from the Supreme Court on this case actually does set out some expectations of the conduct of government that’s useful.
And that other case that I mentioned, I think it’s also useful, without getting into all the details on that. But I do think if any listeners are especially curious about that, just send me an email and I’ll tell you what I’m talking about and reference the aspects of the decision that I’m referring to.
Julia: Excuse me, are you talking about the case that you said that was still jurisdiction over this case?
Naiomi: I’m talking about the C92 reference but also the one that’s coming up. But in the C92 reference, there’s I think really helpful commentary from the court about expectations on government in their conduct. But the other case will even add to that more, I believe.
Julia: Okay, great.
Naiomi: Work is happening in First Nations communities. I think that there’s some issues around negotiation. I kind of mentioned some. There’s I think also worry if there’s going to be a change in government, how that might affect negotiations, although I don’t think governments can resile from their obligations under this act unless this act gets completely repealed. Even then, that might raise a constitutional issue. So there definitely are success stories, but we also try to say to indigenous communities, don’t feel rushed into doing this. Take your time. Don’t just cut and paste from a provincial statute. Take the time to figure out what’s going to work for the community, and have a plan.
And some of the more successful groups that have passed their own laws have done just that, have taken their time. And some of them started 10 years ago, 15 years ago in developing this.
Julia: Yeah, they haven’t waited. This is now here, but they haven’t waited for that. We’re only starting work on it. It’s also good to remember I think, work has been done for a long time, way before that. And also, you mentioned a little bit, the UNDRIP, because I know it’s relevant. There’s a lot of space to implement it. And do you feel like this bill has been contributing to this implementation? How do you feel, like they kind of go together, or do you think there’s no link at all?
Naiomi: Yeah. It’s fascinating, that piece. And the reference is amazing. A lot of us who were part of the case weren’t expecting where the court went, but the court went in a very positive direction on this. But what’s interesting is that the C92 legislation was passed in 2019. The UN declaration legislation is 221, so it was a little bit before. But in the legislation itself, it does say that it’s about implementing the UN declaration.
So one of the ways that you the UN declaration gets applied in Canadian law is by governments passing legislation to make sure that it’s consistent with UNDRIP. That’s one way. Another way is interpreting existing law to be consistent with UNDRIP. So the core in the reference really does recognize TRC and the UN declaration, even affirms I guess in some respects the comment from the TRC that the UN declaration is the framework for reconciliation and should be the framework for reconciliation. So that is really cool.
And I guess what was really surprising for many of us, because to this point, the court had kind of avoided really getting into UNDRIP, at paragraph four of the decision, very sort of matter-of-factly, without spending any time kind of talking about the debate or even how you get there, they simply say that UNDRIP has been incorporated into the country’s positive law by section 4A of the UNDRIP Act. Which means that there’s a role to play for governments to implement, and this act is an example. But it also means UNDRIP can be used to interpret Canadian law.
And there’s a later part in the decision, I think around paragraph 90, where they say that concrete implementation measures provided for the act have to be interpreted in light of UNDRIP. So they were contemplating that. And in a subsequent case that came out in March called the Dickson versus Vuntut Gwitchin, the court relies on UNDRIP more. And so we are starting to see this and the court has said it applies now in the positive law of Canada. So UNDRIP had a significant impact on the case, and the court even went further with the Federal UNDRIP Act than I think any of us were anticipating for this case.
Julia: That’s great though. That’s great to hear. It’s very positive to talk to you today. It’s very nice actually. Do you feel like by now there’s a good ground, it’s favourable for what you were calling legislative reconciliation? Can you explain a bit, what is legislative reconciliation and where do you think we’re going there?
Naiomi: How I refer to it in my paper is it’s governments using their legislative powers for good and not bad. The Indian Act you might say was the government using its legislative powers for bad for a very long time. But as I said before, in the same way that governments pass laws to implement the charter, they should be passing laws to implement inherent rights, section 35 rights and also what’s in UNDRIP which are related in that respect significantly in terms of UNDRIP recognizes both collective and individual rights for indigenous peoples that are viewed to be the minimum standards of rights at international law, fundamental human rights.
Julia: Can I ask you, because when you say to the government, pass those laws, but then you also refer in one of your articles I really love, and I think I told you when we were preparing this podcast, but you were talking about indigenous government and indigenous legal order, and to give some space to those governments. So when you say those governments passing those laws, you’re talking about I guess the Federal, provincial government. But do you give some space to those indigenous governments as well? How do you see them interplay?
Naiomi: Great question. So yes, I believe that there is an inherent right to govern that is protected by section 35 and I think that the UN declaration really fundamentally enhances that or really underscores the importance of that. The right to self determination is really at the heart of the UN declaration. So definitely I agree that First Nations, they don’t need the permission of federal governments or provincial governments to exercise jurisdiction.
That said, to this point, there have been negotiations but they take 30 years sometimes. They’re really long. They’re very costly. And so that is a model I feel has been holding communities back. Communities can just do it and some have just been asserting jurisdiction, although sometimes that’s been risky. Governments have sued them for different reasons. There was a local case here from a couple a decade ago now, where a community developed its own system to keep the GFT from sales in the community and put that towards something to support elders. And Canada Revenue Agency did not like that and sued them, and so there’s risks sometimes in proceeding with an assertion.
And I think it is reasonable for governments in co-developed legislation with communities to create legal frameworks that remove that uncertainty, that remove the risk. And so that’s the idea, not to need the permission. You know, in the US, there’s something like 46, probably more now, pieces of legislation that help and assist in the implementation and the exercise of tribal jurisdiction. There are tons, all kinds. And they’re clear about the funding arrangements. And that doesn’t mean that it’s giving the tribes jurisdiction, because there’s a decision from the US Supreme Court from the 1830s that recognized their inherent jurisdiction. That’s why I say it’s been a lot longer in the US.
And since the 60s, there’s been just a much broader recognition, and Congress in the US has passed all kinds of laws to help in the exercise of that and to fund the exercise of that. And in fact, they have far more developed jurisdictional legal orders there. Most tribes have their own courts. And so they are running their own legal systems, and some look more like mainstream legal systems. Some draw more on traditional so there’s a whole mix. But that’s to say that you can have all of those things. And in fact, I think legislation can really help. And that’s what makes it different from legislation of the past. It’s legislation that is helping create that space to create legal certainty around that space, which has been really lacking.
Julia: Thank you, that’s very enlightening actually. I could hear you talk about this for a long time. Maybe I would ask you a last question about that. So indigenous government is one thing, but also the indigenous legal order. And I feel like maybe even when we’re doing legislation or judges or society in general, there’s a lack of understanding of what it fully is. I think people are, for their minds, they have an issue, understanding what it is, what it can be. And so I don’t know if you could also talk to us about that. What do you think we’re lacking in our understanding as lawyers for instance? Let’s focus more on that, when we talk about the indigenous order.
Naiomi: There has been something called an indigenous law renaissance essentially by a couple of fellows. John Burroughs, Val Napoleon, Hadley Freeman, they’ve just been such huge figures in this. And it’s now I guess almost two decades now, but it is starting to be recognized far more than it has in the past. You have judges talking about it. The Supreme Court talks about it in the reference. I’ll mention that a little bit more after. And it’s starting to be taught in law school. So I teach a course on it and I’m going into my fifth year of teaching that course. Not all schools do. But there are now, I would say, quite a few. U of Vic actually has a degree based program where you get a joint common law and a degree in indigenous legal order.
So this is happening. And so what that’s referring to is essentially indigenous peoples’ legal orders which there’s a broad definition. So I do presentations on this and we could spend a whole hour just on this. But John Burroughs explains, and other people do as well, that indigenous peoples had and have legal orders. In the modern day, they’ve been impacted by colonialism. And so there’s work to be done in what’s called revitalizing legal orders. And they come from a variety of sources.
So whereas we get legislation in Canada, we also get common-law decisions from judges. But there are a variety of different sources that can come from oral tradition and from talking to elders and knowledge holders. But there are so many other sources as well. It can include sort of stories, creation stories. Treaties can be a source of indigenous law, and then treaties not just with European nations, but also indigenous folks say that they have treaties with the animals and have responsibilities to them. Indigenous languages can have indigenous laws embedded in them. Some concepts really do describe a legal concept.
Some of the work that I’ve been doing has been looking at the use of language in that way. Ceremonies, songs, dances can also include indigenous law. So there’s a lot of work happening in BC. There’s something called the Indigenous Law Research Institute run out of U of Vic and Alberta. There is the Wequedong Lodge. We have something happening here on the east coast that we’re working on at my law school. But it’s all to support communities in revitalizing their laws, working with the kinds of sources I mentioned and developing resources for communities to use, to inform their decision making, inform their policies, inform the development of things like child welfare laws, which is itself a version of indigenous law, but it’s broader concept.
But you could draw in these teachings that come from aspects of our culture that teach us about how our people thought about and saw the world, and also teaches about our values and our principles and how we believe people should interact with each other and with the world around us. So that’s not a full, full explanation, but this is what is happening. And this kind of work is now being tapped into to inform things like laws developed under C92. And it’s happening in a wide variety of areas.
Julia: And you said a Supreme Court, mention it.
Naiomi: Oh yes. So this was also another mind blowing aspect of the decision. They referred to – again, I said they said that they did recognize or were supportive of the TRC, saying that the UN declaration should be the framework for reconciliation. But they also for the first time talk about indigenous legal orders and its role in reconciliation, because the TRC spoke about that. They said it’s UNDRIP but it’s also indigenous legal orders have to be revitalized and become a part, a recognized part of the legal system in Canada.
And it was so neat. There was a book series, or a couple of books that was a collection of writings by different indigenous scholars working in this area, John and various other folks. And the title of the series was “Braiding Legal Orders.” And it was about bringing together the standards, and UNDRIP, state law as well as indigenous legal orders and braiding them together, and that’s what reconciliation will look like. Well, the course took that concept. They actually said – so I think this is – I’m flipping in my notes here – where did they say it exactly?
Yeah, so at a few various points, yes, paragraph 773 and 90, for those who want to go look, talk about the act reflecting an openness to braiding of legal orders. And then at 90, they say, “Reconciliation will take time. It will not be accomplished in a single, sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist.”
So they have gone on to this concept. So it’s like wow, it is a recognition that indigenous legal orders are part of reconciliation and the work that needs to happen. A lot of more filling that out, but that’s a huge step forward in terms of the court before that had not really spoken of legal orders in that way. There was some recognition that indigenous perspective or indigenous views did inform section 35, but that was not what the court – they were going well beyond that in this case.
Julia: It’s an extra step I would say of reconciliation. And from the Supreme Court also, it’s something that you can use further for your work after that.
Naiomi: Absolutely.
Julia: It’s also very important. I just want also to get a bit of, not on the personal level, but just about, because it’s very inspiring what you did and what you’ve been involved in. I know you’ve been involved with other colleagues as well. Just out of curiosity, if you have any lessons learned of how you did all this process of creating this legislation, being involved in it, defending it in front of the Supreme Court. So if you have any – how it was. Was it hard times sometimes? I’m guessing it wasn’t easy. You’re super busy. Some lessons learned that you’d like to share. And that would be very great because we always love to hear about our heroes. So if you can, that would be great.
Naiomi: Let me just think on that. I mean, a really big inspiration for me is Cindy Blackstock, who I met when I was bringing another case that was before this but really was my sort of entrance into all of this. I had this other case on social assistance on reserve which was my eye opening experience to learning how chronically underfunded all these different services were. And it was sort of that point where I was– I talked about this before – but I noticed that there was virtually nothing written in legal text on these problems. And it was so not known.
And at this time I was getting encouraged to consider going to academia, and I was doing my LLM part time. And so I really felt that I could make a contribution by writing about these areas. And I met Cindy in the process. Cindy had gotten a massive disclosure dump through a FOIPOP request. And in that FOIPOP request, it was about her case that she was bringing to the CHRT. But it was referenced to me and my case because there’s overlap.
So she called me and that was the first time we ever talked. And she’s like, “Hey, this is Cindy Blackstock. I have all these emails with your name on them. Do you want to see what some of them say?” And I’m like sure, I’d love that. So that’s where our relationship started. And over time, we’ve continued to compare notes. I am not one of her lawyers that represents her at the CHRT, although now I work with them quite a bit. I have tried to really support her in the amazing work that she does. And there’s so much more to do because there are so many other areas that are chronically underfunded, social assistance to me still being one that’s very near to my heart and still needs a case just like Cindy’s case, I’m starting to think very much.
And so I went to academia after that and then just started writing. I wrote about how child welfare worked, and advocating with other people writing in the area, just trying to get it out there more. I guess I would say one of the lessons is you can advocate in so many different ways. So I think we sometimes think – and I try to tell this to my students to sort of encourage them to think about academia, that academia is not just like being a teacher, although you can have a huge impact as a teacher, and that’s important, I love teaching. But also the advocacy that you can do looks different. It’s not going to court necessarily. Well, I still go to court. But by writing and going in to make presentations and just raising awareness and doing things like this, like podcasts, all of that is really helpful in sort of raising awareness and sort of changing hearts and minds on this stuff.
So I guess one of the lessons is to have an open mind and be imaginative about the different ways that you can bring this stuff to people’s attention. And I guess also people have responded. And I am really pleased with the receptiveness of the court on some of these issues, and people I see start to learn it. So it’s promising. I’m sure there will be road bumps, stumbling blocks and other issues. But certainly there’s a receptiveness these days. And I feel that we’re at a really important turning point in how things have been going on indigenous issues. And who knows what’s going to happen politically and other stuff. But I do feel in terms of the legal profession, we are in a really important turning point. So yeah, those are some observations. I don’t know if I touched directly on like a personal thing but…
Julia: That’s very good actually because I feel like you’re a good example of someone who’s doing both. You take the time because I think we need some people who think about these issues and that they can write articles and they can publish. But you also, you’re doing both. You publish and you think about it, and then you also put it into practice. But I think it’s a good example for practitioners because sometimes I hear my friends who are more into the practice world, saying, “Ah, I don’t have time to read articles.” But I think it is important because that’s where you get those ideas. That’s where you can push things forward. And so it all goes together at the end. So I think advocacy is everywhere and you can do it in many ways. It’s a really good takeaway.
Naiomi: In my own law firm, I used to see that too. Nobody reads. But you know, there are still things to be written about. Not everything’s been written about. If you believe you’re working for underrepresented communities, there’s room to write, and practitioners can write stuff too and do part time master’s. But reading is just so important because that is where you get your ideas and you need that to bring those things to the judges.
That’s the thing too, sometimes we go and we talk about our papers to judges and they say, “Well that’s great.” But they’re like, “We can’t bring in this stuff really on our own motion.” They say it’s got to be counsel who brings this in, so there’s got to be that link.
Julia: Totally. Well Naiomi, I don’t know if there’s something we haven’t touched about that you’d like to share in this podcast. But otherwise, I think we got everything. It was super interesting, very clear too. But if there’s anything, please go ahead. Like this is your moment.
Naiomi: I think we touched on quite a bit, so thanks so much.
Julia: It was very nice.
[End of recorded material at 00:55:46]