The TRC Calls to Action & the pursuit of “Reconciliation”

This weekend, I participated in the Indigenous Bar Association’s annual Conference, this year themed around the pursuit of “Reconciliation” in the wake of the Indian Residential Schools’ Truth and Reconciliation Commission’s Calls to Action. I was asked to share thoughts on what Reconciliation meant, both in the sphere of legal education and to me personally. The Conference was lively, thoughtful and hopeful and I hope its momentum continues to place Indigenous lawyers, law students, law reform activists and legal educators at the forefront of charting a way forward.

The Truth and Reconciliation Commission’s Call to Action #28 speaks directly to Law Schools in Canada:

“We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism.”

Importantly, this Call to Action is placed within the section of the Summary Report dealing with the “Justice” system. It speaks not to goals around education (dealt with in detail through other Calls to Action) but around the knowledge and skills of legal professionals – and represents a response to the many submissions to the TRC highlighting deficits in lawyers both representing governments and Indigenous communities and individuals at various points in the Residential Schools saga. Call to Action #28 mirrors a similar Call to Action (#27) calling on Law Societies to cover the same areas in the licensing process by which law school graduates become lawyers (and this Call to Action was the subject of a memorable conference sponsored by the Federation of Law Societies of Canada in Winnipeg earlier in October in which I also had the good fortune to participate).

Call to Action #28 has galvanized interest and engagement across all Canadian Law Schools. A portion of the material in the Call to Action (Aboriginal rights within Canada’s Constitution) is already part of the national requirement for Canadian common law programs approved by the Federation of Law Societies, but many other parts (notably Indigenous Law and intercultural competencies) are not. The Canadian legal academy has been contributing to a shared blog on #ReconciliationSyllabus, while a number of Law Deans have written eloquently on the TRC Call to Action as a catalyst for transforming Canadian legal education. My colleague Jeremy Webber at UVic, for example, refers to the Call to Action as part of a broader and “revolutionary” project aimed at reversing the “displacement” that too often accompanies Indigenous law students’ journey through legal education.

At Osgoode, our focus has been as much on the process to which the TRC gives rise as the substance of potential new courses or course material. How should the TRC be taught? In a Classroom? In Indigenous communities?

Osgoode’s “Anishnaabe Law Camp” represents one possible vision for how Canadian legal education can respond to the challenge of Reconciliation. For the past two years, each September, approximately 40 law students and Osgoode faculty members travelled to Neyaashiinigmiing (Cape Croker) to attend the camp, organized by Professor Andrée Boisselle in collaboration with Osgoode grad and UVic Professor John Borrows and his daughter Lindsay, their family and community, the Chippewas of Nawash. The camp brings together Indigenous and non-Indigenous students and features exposure to Indigenous legal and cultural knowledge in the land which lies at the heart of that knowledge.

Osgoode Visiting Professor Jeffery Hewitt (who led his own experiential course bringing law students to his host community in the Rama First Nation to explore Indigenous approaches to rights’ dispute resolution) has emphasized the need for the legal community to “listen” to Indigenous communities as the path for Reconciliation is charted.

As TRC Commissioner Murray Sinclair reminded us in his keynote address to the IBA Conference, Reconciliation needs to have both a personal and a community dimension. It will not happen overnight and there will be many who mistakenly see the TRC Report as an occasion for “moving on” from the devastation of Residential Schools.

In my participation at the Indigenous Bar Association Conference, I embraced the call for Law Schools too take up the challenge to listen, and reflect, both internally and in conversation with other Law Schools, the legal community and most of all Indigenous communities, on what the future of legal education in pursuit of Reconciliation ought to look like. Indigenous law professors, law students and alumni will also play vital roles in formulating how best to act on the basis of what we hear. I spoke to how my own scholarship, teaching and administrative vfor Reconciliation has been shaped by the insights shared in these discussions.

While Canadian legal education is poised at a crossroads where transformative change is possible, it is important not to settle for the quickest and most tangible options. Creating a separate, stand-alone course, as other law professors have noted, could expose all law students to important material as envisioned in Call to Action #28 but may actually serve to marginalize the teaching of Indigenous law. If it is taught in its own course, that might suggest it is not fundamental to how we teach and understand other elements of the curriculum, from Property and Constitutional Law to Torts, Tax and Administrative Law.

Similarly, to view Call to Action #28 as hived off from other Calls to Action in the TRC Report also could have the effect of isolating legal education from other integrated responses to the TRC (perhaps, for example, involving collaborative initiatives between courts, law societies and law schools).

Reconciliation like treaties can only be achieved by mutual agreement based on mutual respect. Unlike treaties, however, Reconciliation will not have a formal start date on which all parties acknowledge obligations and duties begin to flow. By contrast, Reconciliation will need to be regenerated in each individual, each community and each generation if Canada is to move forward. Given the role laws and lawyers played in the injustices toward Indigenous peoples so vividly demonstrated through the TRC process, it is absolutely appropriate that Law Schools seek to play significant and sustaining roles in the journey toward Reconciliation. If the energy and passion displayed by Indigenous law students and others at the IBA Conference is any indication, we will have to work hard to do justice to the expectations that the TRC has raised.