Introduction to Indigenous Law and Legal Orders – Part 2: The Way Forward

In Part 2 of this two-part series, our panel continues their discussion on Indigenous laws and legal traditions, with a focus on the way forward. They discuss some of the work that is already taking place in Indigenous communities to revitalize Indigenous legal traditions and to  exercise governance authority within the Canadian context more broadly, including over water. They also discuss some of the opportunities for more areas of Indigenous jurisdiction, and how to take steps to implement the recommendations of the Truth and Reconciliation Commission.   

Aimée Craft is an Indigenous (Anishinaabe-Métis) lawyer from Treaty 1 territory in Manitoba and an award-winning professor and researcher at the University of Ottawa. Since 2013, Professor Craft has led research on Anishinaabe water law. Her award-winning book, Breathing Life Into the Stone Fort Treaty, focuses on understanding and interpreting treaties from an Anishinaabe inaakonigewin (legal) perspective. Professor Craft is the former Director of Research at the National Inquiry into Missing and Murdered Indigenous Women and Girls and the founding Director of Research at the National Centre for Truth and Reconciliation. She is a current member of the Speaker's Bureau of the Treaty Relations Commission of Manitoba.

Professor Alan Hanna is an Assistant Professor at the University of Victoria, where he teaches in both the JD and the JID programs. He is of mixed Blackfoot, French and Scottish heritage, and is connected to the Secwepemc through marriage. Professor Hanna’s research focuses on Indigenous laws and jurisdiction, governance, rights and title, and environmental sustainability under Indigenous legal traditions, Aboriginal law and jurisprudence, and the intersections between all these systems. Professor Hanna also sits on the Legal Advisory Panel of RAVEN Trust and the Board of Directors of the Indigenous Bar Association in Canada.

Christina Gray is a lawyer with JFK Law LLP, with a focus on litigation and Indigenous governance. Christina is a Ts’msyen citizen from Lax Kw’alaams in northern British Columbia and Dene from Yellowknife in the Northwest Territories. As a scholar, Christina’s graduate research focuses on issues of gender representation within the Ts’msyen legal order and governance system. Christina is also a Yellowhead Institute Research Fellow, which is a First Nations-led think tank rooted in community networks and committed to Indigenous self-determination.

Aria Laskin practices Aboriginal, environmental and constitutional law in JFK Law LLP’s Vancouver office. She has appeared in front of all levels of court in British Columbia and Ontario, the Federal Court, the Supreme Court of Canada and a range of administrative and arbitral panels.

Land Acknowledgement
The Advocates’ Society acknowledges that our offices, located in Toronto, are on the customary and traditional lands of the Mississaugas of the Credit, the Haudenosaunee, the Anishinabek, the Huron-Wendat and now home to many First Nations, Inuit, and Metis peoples.  We acknowledge current treaty holders, the Mississaugas of the Credit and honour their long history of welcoming many nations to this territory.
 
While The Advocates’ Society is based in Toronto, we are a national organization with Directors and members located across Canada in the treaty and traditional territories of many Indigenous Peoples. We encourage our members to reflect upon their relationships with the Indigenous Peoples in these territories, and the history of the land on which they live and work.
 
We acknowledge the devastating impacts of colonization, including the history of residential schools, for many Indigenous peoples, families, and communities and commit to fostering diversity, equity, and inclusiveness in an informed legal profession in Canada and within The Advocates’ Society.

Transcript

Speaker 1: 0:02

Welcome to Friends Who Argue a Podcast from The Advocate Society.

Speaker 2: 0:07

Each episode will bring you conversations with advocates across all areas of litigation who share their stories, insights, tips, and tricks from their journeys. As advocates,

Speaker 1: 0:18

We hope you'll find this podcast informative, inspiring, and most of all entertaining, and that you'll subscribe to our podcast on iTunes to stay up to date on the latest episodes, friends Who Argued is proudly sponsored by M N P, litigation Support and Dispute Resolution, your expert partner for forensics valuations and litigation support mnp, wherever business takes you.

Speaker 3: 0:48

Hello and welcome to this very special series of episodes of Friends Who Argue the podcast of The Advocate Society. My name is Aria Laskin, and I'm a litigation lawyer with JFK Law Corporation in Vancouver. My practice focuses on Aboriginal constitutional and administrative law. Before diving into these episodes, I wanna start by recognizing that I'm recording this podcast from the unseated territory of the Cosalish peoples, including the territories of the Musqueam, Squamish, and Slava Tooth Nations, and that the guests on this podcast come to us from the territories of different indigenous peoples across Canada, including the Treaty one territory of the Anishnabe, Cree og, Cree Dene, Dakota, uh, m a t people, and the territories of the Laan. And peoples, most of our listeners are trained exclusively in Western legal traditions that have their roots in the United Kingdom in France, rather than the lands on which we all work in practice. But there are other legal traditions and orders rooted in these lands that proceed colonization and that persists today the legal orders and practices of indigenous peoples. I was lucky to sit down earlier this year with three leaders in the field, folks with the background in both academics and legal practice. Professor Emmy Craft at the University of Ottawa, professor Alan Hannah at the University of Victoria. And Christina Great, a colleague of mine at JFK Law Corporation. I wanna move a little bit into a very condensed, uh, version of what is a very long history and, um, experience of how the colonial state has interacted with and treated the legal systems and traditions, uh, of those who were, were here prior to the arrival of Europeans. Christina, this is obviously a really big question and, and I'm asking you to provide a response that isn't, you know, book length, which is a tall order.

Speaker 4: 2:43

Colonization happened, uh, quite, quite a lot. It's at, at a different time period, I think, than than other nations. And so I was just looking at this the other day, and I think it was the late 18th century. That's when, when the first settlers came to this area. But it wasn't until 1834 when the Hudsons Bay Company was set up in what is now present day Aquis or Port Simpson, it was before, called Fort Simpson. And so, when I think about this question, I think about this one oral history that I was reading. I think I was reading it to my mom recently after dinner. We were sitting around the kitchen table and I was given these, this book collection behind me, um, uh, a local organization for speaking in a school. And it is about how the Hudsons Bay Company, uh, got their land at La Lalas because before the Hudsons Bay Company was set up, um, on the nas and in the oral history, they speak about how people were freezing to death in the winter. And so the daughter of Lake Gallic, who was chief in the GBU lots tribe, was telling her father about how people were freezing, and she was, uh, married to settler and they needed better land. Um, so he, uh, gave her some land at present day lack lambs, and because that was part of his territory, so that's how they, they started the fort there. And there might be other competing, um, versions of this oral history. But I think about that oral history because for me, I, I've been thinking about how, how that fort was set up and why did people move from the Skeena River to, uh, the coast. The Skeena, uh, you know, goes from Terrace and, um, from other places to the coast. And so simian actually means, uh, from within the skeena people, from within the Skeena. And so I think about that oral history and as a way of portraying like, how, how people cared for each other, like how like it cared for his daughter, how she was empowered, uh, within that relationship with her partner and how, and they was talking about relation, like the complex web of relationships. And I think this is a great example of talking about complex web of relationships that existed at around the time of, uh, contact or, you know, I think colonization is an ongoing, uh, effort, but this was, um, almost 200 years ago. So I think it's really important to, um, look at those oral histories that existed, and there are so many that are written down and to learn what, what did our ancestors have to say about them? And like you might, I've, I found this in a book, but I think other people could also go and look at different resources that exist out there. And there's a lot of really great ones. And I know, um, I may also wrote a book for children on treaty relationship. And I think that's a really excellent example of how we can also use our voice to, uh, right about what's important to us. And I'd love for ma to speak a little bit more about this because I gave this book to my friend, and she really loves it. And I think it, it's really awesome.

Speaker 5: 6:27

It's actually not a children's book. It's an everybody book that is accessible to children. And, um, and I love it for that. I feel so many things about this book. Um, but it's called Treaty Words for as long as the Rivers Flow. It's a story of a young girl and her grandfather. And essentially what they do is just sit on the land and they, uh, he teaches her how to listen, uh, how to be in silence, and how to listen to everything that's going on around them. And what he reflects on is that what you see around you can tell you a lot about how to govern yourself, how to be in relationship. As I was mentioning earlier, how Anishinabe law is structured. We see that in the interactions between all of these beings. And here they're watching the ice break up, and they're watching the sun have this relationship with the ice that's turning into water, that's having this relationship with all of like the wind and the grass and the fire that they've made. And he says, you know, this is how we learned how to make our treaties. These are the things that taught us how to enact responsibility and reciprocity and the annual cycles of renewal. And all of this was here. All we had to do was listen. And that showed us how then to have good relationships. And when we made treaties with settlers, we built those treaties on existing treaty making principles. So often people have this misconception that European powers come into indigenous territory, and all of a sudden treaties are made. And, you know, there was a theory that people had been duped, and in a lot of circumstances, uh, were less than desirable in, in treaty making in Western Canada. I, I wanna acknowledge that. But I think there's a certain level of agency, and especially in Treaty one, where the Nishina Bay are asking for, uh, the making of the treaty. They see this pressure of, uh, the railway and western expansion, and they're saying, we wanna make this treaty. We wanna make it on the basis of our values, which is renewal and reciprocity and respect, and, uh, agree an agreement to share in the land, and find ways to live collectively in ways that reflect the Anishinabe particular relationship with the land and territory, and the knowledge about how to negotiate that. And the, the, and the underlying principles that I just talked about, those had existed in this territory for a very, very long time prior to any European stepping foot on Turtle Island, you know, before any European presence in North America. And those had formed the foundations of alliances and treaties that were made amongst other beings that are part of creation, uh, between anishinabe and other beings that are part of creation between anishinabe themselves, different parts of the nation, between anishinabe and other nations like the Dakota and the Cree. And also then later on formed those relationships, uh, with settler colonial powers. And so to think of, you know, indigenous negotiators as anything less than very skilled and practice negotiators would be false. And so what this, this book, uh, talks about is how we learn to make good treaties on the basis of, of forming relationships. And that gets translated then, uh, in the Treaty one context into very robust and sophisticated legal normative values or laws that show up in how the treaty is made. You know, d deep diplomatic principles like not negotiating on the be on behalf of any of the other people that were not represented at the Stone fort. Um, ensuring that proper protocols were, were followed and demanding that that be the case, asserting jurisdiction by demanding the release of prisoners that were being held at the fort, and saying, our, our relationship cannot be forged. Uh, while there's this dark cloud, uh, over our negotiations. All of those things are very important, you know, procedural elements and substantive elements of Anishinabe law that are, that are prioritized in this, is this negotiation. And, and that built off a long history of making treaties, um, and commercial treaties with, um, fur traders. And so all of that gets imported into, uh, the numbered treaties negotiations at the beginning. And, uh, I always love to to reference this one particular, uh, nishina negotiator who, uh, is described in the record as showing up completely smeared in white clay. And when the, they draw out the map and they, they, the anishnabe claim two-thirds of the province of Manitoba. And the commissioner says, well, if that's the case, I'd rather be anishnabe than, uh, you know, than this British subject or, or subject of Canada. And, uh, and this, this negotiated this anishnabe chief to says, try and take it from me. I'm made of it. Like, you may be able to do that by your rules, but I can't sell this to you. I can't give this to you. Try and take it. I am it, it is me, it's my mother. And you see it here in front of you. You, you know, that, that to me is the, the deepest resonance of anishinabe. Even those who did not understand Anishinabe law were able to put that on the Western record in the English record, because they understood that what he was saying was, I just see this differently from you and try and take it. You'll never actually succeed. All we can do is agree to share and agree to be on this land together and figure out how, as humans, maybe we'll do the least harm possible. And I think that actually has some pretty deep resonance for where we are as a society today, that idea of doing as little harm as possible and being in good relationship with the lands, territories, waters, um, in which we are. I think a lot of, uh, the Anishinabe philosophy in, you know, the territory that I'm from actually provide some solution to the deep climate crisis that we're collectively in. So those reflections, you know, I don't think a 12 year old's gonna pick up the book and say like, Hey, this is a response to climate change<laugh>. But I think maybe some will, and maybe they'll turn out to be, you know, 25 year olds running for political offices, willing to make that change. And, and, you know, it, it, it is such a great opportunity to work. I think, Christina, you said this, you know, with stories and, and work with what things emanate from our past, but that we are able to carry forward today. Like there is very little distinction in a lot of the ways that our elders will speak, um, in terms of what is past and what is future. And actually in the Cree language, um, you know, our great-grandchild and great-grandparent use the same word, a chop on the same. They, it is, um, there's a recco recognition of, uh, a cyclical nature to life and, and how the past is connected to, um, the future. So, you know, a lot of people now in communities and, and a variety of different indigenous communities are talking about how elders had predicted our knowledge keepers, um, visionaries had predicted where we would be in this climate crisis, and that they sewed the seeds of that knowledge a very long time ago to, uh, to be able to help us through this, this time or not. There are also some, uh, prophecies that, you know, as humans, we disappear. And I think we should take that seriously and think about how we might need to change some of our, our actions in response to that.

Speaker 3: 14:29

Thank you. That's really interesting. And, and I, and I want to ask you later a little bit more about that, the concept of, of how Anishinabek can provide really helpful frameworks or tools, first, wanting to the climate crisis that western law seems to, uh, maybe not be able to do. First, though, I want to, to ask you, professor Hannah, to speak a little bit about, uh, if you can, professor Kraft spoke about the, uh, at the time force and strength of anishinabe legality, when, when the treaties were negotiated, and then again, how today there's this period of revitalization and growth. You know, for some of our listeners, they may not be aware of, uh, ways in which the Canadian state treated indigenous legal orders, uh, in the intervening period, and especially, you know, the last kind of 150 years. Obviously, that's a big question, but if you could, could talk about it a little bit just to provide the context and grounding for where, for where things are today.

Speaker 6: 15:20

So, I mean, there's two aspects, two ways in which Canada has addressed or recognized or not recognized indigenous legal orders, uh, historically. And that is politically and, and legally, politically, there's been, uh, a consistent denial, uh, of any recognition of indigenous legal orders. I think largely out of a, out of one, a lack of interest, but also one rooted very deeply in an idea of English, of European supremacy and, and racism, people being, uh, viewed this different, uh, way of, of understanding selves in the world and way of living as quote unquote savages in the world. And certainly politically, we have this sense that, uh, throughout, particularly the, the 19th and 20th century, that with the onslaught of Europeans, indigenous people would eventually just disappear. So we have the famous quote from Duncan Campbell Scott, who is the deputy superintendent of indigenous of, of Indian Affairs, uh, in the early 20th century, who was speaking in a parliamentary committee that he, and, and I'm just quoting, I wanna get rid of the Indian problem. I do not think, as a matter of fact, that the country ought to continuously protect a class of people who are able to stand alone. Our objective is to continue until there's not a single Indian in Canada that has not been absorbed into the body politic. And there is no Indian question and no Indian department. That is the whole object of this bill. And of course, he's referring to an amendment to the, to the Indian Act, uh, that would serve to continue to undermine the authority, uh, the rights of indigenous people. So, so that's, you know, a political vision, uh, this idea of assimilation. Eventually there will be no indigenous people because they'll just become part of the, uh, the dominant society. And what happens is this, this political ideology gets exercised through legal means. So we end up in the middle of the, of the 19th century with a couple pieces of legislation, the Gradual Civilization Act, and an act, uh, to enfranchise the Indians. Uh, these get rolled together into the Indian Act in 1876, and what those, what the Indian Act does, and those, those, uh, previous acts and various policies is actually outlaws indigenous law. So banning the Potlatch system, banning Sundance, uh, these are, uh, political, ceremonial and legal, uh, processes and institutions of various, uh, indigenous peoples, uh, where law is generated, where law is recorded, it's practiced, uh, it's maintained through these institutions. And under Canadian law, they are outlawed. It, it becomes illegal to continue to practice those in, of course, in 1927, the Indian Act is amended to include the outlawing of indigenous peoples from hiring lawyers to pursue land claims. So there is this aggressive use of Canada's legal institution to undermine and really stomp out indigenous legal orders, legal knowledges, indigenous people altogether to, to remove in, as in Scott's statement, um, the so-called Indian problem. And of course, that's not always the case because there is, uh, precedence in the courts in the 18 hundreds. We have, um, Connolly and, and Woolrich 1867, uh, that case is famously cited as recognizing Cree law for recognizing the legality of a marriage, a, according to the Cree Legal Order in legal practice, uh, we still, you know, we see cases, um, more recently that recognize indigenous law as playing a role in, uh, and being recognized and accepted in the Canadian legal system. So we have Kamel versus I C B C. It's a family law case, uh, from, from, uh, 1993. I think in large part what gets ignored is the question of the legality, of the assertion of crown sovereignty and all of this, because under indigenous legal orders, there is all kinds of evidence of the, the original jurisdiction through, uh, creation stories, through ceremonies, uh, through various, uh, other legal practices, the origins of authority, the jurisdiction over the lands that people exercise, uh, in a manner in which can be understood in the Canadian legal system. So how does the crown gain legal authority over title? So this, this underlying title to indigenous lands, I think is a question that gets missed by asking other questions about, you know, the, the validity, the recognition, the reliability of indigenous legal orders, because the people themselves know how all of that operates. They know the origins of, of their coming to being on the land. Uh, and then, you know, you have this later story that says, well, you know, it's, uh, identified in, in different cases, but particularly, uh, sparrow that, you know, when Europeans arrived, there was just simply never any doubt. I mean, that's, that's an origin story for the crown that, uh, titled to the land Vested with the Queen, vested with Europeans. So there's this, this erasure that happens through the narratives about, uh, around talking about indigenous legal orders and their relationship with the state. Uh, and when we blur or ignore the, the conversation about how did the sovereignty of the crown give rise to the Canadian state, I mean, that really answers a lot of the question, because the, the simple assumption that that exists and is valid is in large part a reason why. And, and the manner in which indigenous legal orders get ignored, because if you, as, as Emme was saying, if you recognize and acknowledge and accept the validity of indigenous legal orders, then you must establish your own origins, your own validity in relationship with those legal orders, which would be informed by those legal orders. And that just didn't work well with Europeans who thought Europeans are simply just better than, than, um, the indigenous people's across Turtle Island. And therefore, uh, there's no need for doing that. The assertion of sovereignty is valid, and it stands, and we know that the Supreme Court of Canada in, in 1973, recognized the basis of the, the, the major flaw in that assertion of sovereignty in the Calder decision, where, you know, the, the court recognized that when Europeans arrived, indigenous people were here organized in societies, they had been for generations. I mean, how do you just, how do you just wash that away, um, with your own assertion and never, never, uh, be able to, to have a conversation about the relationship between that recognition and the assertion that follows, that serves to wipe out or attempt to wipe out not just indigenous peoples, but their, uh, legal orders, their socioeconomic societies and relationships to the land.

Speaker 3: 23:43

To, uh, to turn our discussion now to, to the way forward here, and starting with Christina, I wonder if you could speak to the Truth and Reconciliation commission's recommendations that focus on the revitalization of indigenous legal orders and what those recommendations might mean for folks in the legal field in Canada.

Speaker 4: 24:05

Yeah, so with this question, I was thinking about the TRCs calls to action before this call. I was thinking a lot about calls to action number 27, which calls upon the Federation of Law Societies to have cultural competency training, and then number 28, calling upon law schools to require law students to take a course in aboriginal people in the law, among other topics. But then there's a lot of discussion on those two calls to action. But in regards to, uh, lawyers I was thinking about, which I think is less talked about, which is calls to action number 92, sub two and three. And I have to say before this call, I was like, how, how can we help future generations of people who are going into the legal profession who might not know about the T R C calls to action that was released in 2015 or the report? And I think right now, unfortunately, and sadly, that I hope now that people are talking about them and really giving some thought because of last year, so sad to speak about the unearthing of indigenous children's graves in residential schools and the work that indigenous nations are doing. I find it really hard to talk about that. But also now, um, in, in this year, like I'm thinking, how can we help people who are coming up now and going into the workforce and, um, who were kids of, maybe they had a parent who was a residential school survivor, or I think in Canada, former Senator Murray Sinclair, said that almost every indigenous person in Canada is affected by, or sorry, every indigenous person in Canada is affected by residential schools. And there's a lot of very challenging things that I think students have to deal with that indigenous students have to deal with that other students might not necessarily have to deal with. And what would I want for those youth or young people or students who might be in school or might be entering school? And that's where I was thinking about cause tax number 92, around ensuring equitable access to jobs training and education opportunities, and providing education for management and staff on the history of aboriginal peoples, including residential schools and indigenous law. And I quickly looked up the stats of lawyers in British Columbia and in BC there are, out of the 14,000 lawyers who are registered with the law society, there are 359 who identify as indigenous. And now we're seeing a handful of indigenous ventures being elected in British Columbia. And MA is on the call who said she's based in Manitoba right now. And it was only more recently where Sasha Paul was elected as the vice president. And so what does that mean? I think that has a huge effect, and I would love to see more people in those types of leadership positions and, um, helping, helping to pave the way for others. But I think we have to start thinking also about calls to action number 92 and ensuring equitable access to jobs so that people can become the vice president of, um, the bar society there. So, you know, I think I would love to see more conversations like that happening, and I think they are beginning to happen, and that's sort of what I'm thinking about today.

Speaker 5: 27:49

Can I jump in on this question? I, I, I think we'd be remiss to, to say, and, and I love what you've laid out, Christina, in terms of responsibility towards future generations of lawyering, like remedying the issues of the past and the non-involvement in indigenous of indigenous people in the law that is imposed on indigenous people, right? Like it's, there's a lot of, of reparation to do, but I think when I think of the, the T R c, uh, truth in Reconciliation Commission and what it does in terms of giving effect to indigenous laws and legal orders, it, it targets lawyers in the existing Canadian legal system, but it sets as the foundation of reconciliation, the United Nations declaration on the rights of indigenous peoples, and that is an international instrument that is wholly grounded in indigenous self-determination. So right there, indigenous self-determination to me says the application of indigenous laws and legal orders, that's built inherently into a proper understanding of, of that declaration. So, you know, if that's to be the f the framework for reconciliation and the foundation for reconciliation in Canada, then you know, what the T R C is saying is indigenous laws and legal orders are part of how Canada has to redefine itself, the work it has to do to, um, engage with reconciliation between the Crown and Canadians and indigenous people. And so, you know, I think that there, that holds a lot of promise and that there are specific calls to action that also help enact, um, indigenous laws and legal orders and, and to set aside outdated doctrine, doctrines like Ellis and Doctrine of Discovery, that kind of rest as the shaky foundations of the Canadian legal construct and kind of says we need to do away with that. And what should stand in its place is, um, nation to nation relationships between crown and indigenous people. So in that, I think the T R C has provided us with a, a great gift in, in that it sets out a path, um, forward for that reconciliation.

Speaker 3: 29:53

You know, I think raises a lot of interesting questions, and I wonder if you could give an example of what that would look like, you know, in practice, like what does this, this renegotiation of, of a nation to nation relationship and a reclaimed place for, for indigenous, uh, you know, traditions and practices and laws in what whatever sort of future, I, I don't wanna see the Canadian state, but whatever, whatever the, however the state sort of becomes as as we move forward, if you could give an example of what that would look like.

Speaker 5: 30:25

So I'll respond in two parts. First on the sort of Canadian legal system and the, the changes that need to be made there. I think that there's, there are limitations to that, and I think that, uh, there have been some inroads, and I would point specifically to, uh, the federal court and some of the rules that have been, and the guidelines that have been put in place collaboratively with the Indigenous Bar Association, the C b a Aboriginal Law section, um, the federal court and elders that have tried to make courts less violent of an environment, a bit more friendly, um, and a space where there can be room for indigenous laws and legal orders. But that's not the full and complete answer to, um, how we recognize indigenous laws and legal orders in Canada. And as I said, there are some limitations that I think my colleagues could speak to, um, very eloquently on the, you know, I think there's, there's the law and how it's applied in the, the, uh, judicial system. And I think that there's law as it's made and policy that is made by governments. And one space currently, and this is a, a contemporary example that I think has a lot of promise in my view, is, um, in the development of the new Canada Water Agency, the federal government has committed funds and has made a, a commitment to the creation of a new agency and an agency that is, um, surely going to have to revise federal policy and a federal, uh, legislation. The Canada Water Act, it has the opportunity to look, uh, at indigenous governance in terms of process, but also in the substance of how we approach decision making relating to water. And it can make room for indigenous governance relating to, uh, water and looking at, you know, maybe thinking about blowing apart concepts of jurisdiction, which, you know, when we think about water jurisdiction is muddy anyway, it's always complex. Um, and thinking less about jurisdiction as power, but more as responsibility. So maybe that means working with indigenous nations that are responsible for certain watersheds and thinking about how they, they make good decisions and how they have not only managed sort of in the day-to-day, but taken long, uh, approaches to governance in relationship with water bodies. And that could really, um, transform how Canada sets itself up on an international stage in terms of its, um, its responsibility to water, but it's protection of water, which already eyes are on Canada in terms of the amount of fresh water that exists here. So by engaging with, um, indigenous nations on a nation to nation basis, really thinking about how to be responsive to protection of water and the needs of, uh, the water itself, and then managing other interests around that, I think provides, uh, an amazing opportunity to really, um, engage, as I said, with indigenous people on their own terms in their indigenous legal orders and governance. And maybe, you know, do you, do others have other examples? I mean, there are, there are so many spaces in which we can engage with indigenous laws, some that are, uh, potentially compromising, uh, spaces where we're, you know, doing, um, the work of compromise and, and multi juridical work. But, uh, you know, there, there are so many examples.

Speaker 6: 34:00

Yeah. So I, I'm thinking, you know, in, in terms of paths forward, I, I, I think I'll start there, which requires people both in, you know, political legal sectors to engage in some of these principles that are fairly widely held. I'm just, so I'm just gonna start with a, a caveat about, uh, legal principles that appear in multiple different legal orders. And some of them sound very generic, and Professor Craft had already talked about the importance of recognizing, you know, diverse systems. So for example, some fairly general principles include respect, include sharing, include this idea of, of reciprocity, depending on how we define that, and humility. And it's important to know that a term such as respect, again, we're, we're using English labels for very complicated concepts that will, will have their own meaning, will have their own words, will have their own interpretation and understanding in different legal orders depending on where geographically people are located and, and how they're comprised of their surroundings of their land. P So one of the questions, you know, I'm often asked is how is respect a legal principle? Because certainly in Canadian law that that's not something that would garner much attention in terms of being a piece of substantive law. And, you know, perhaps it's more procedural, but a concept like respect actually invokes obligations in people to act, to act in certain ways or not act, avoid acting in certain ways, uh, that will either support or allow the flourishing of, or, uh, protect, uh, particular spaces such as, um, water, water as, um, entities, water as geographic, um, watersheds as geographic spaces. And it also forces or requires people to not act in certain ways that would disrupt damage or harm water waterways, water courses, um, watersheds the relationships people have with, with water. So it, it's legal in in that manner, as I understand it, at least from within the taine legal order. So in, in order to, to live by some of these principles, and I'll use the term reciprocity or the idea that something of relatively equal, or it may even be lesser or greater value, however we define that, is, is, um, shared between, uh, given and received between parties as a man, uh, matter mechanism for managing relationships. For a long time, indigenous peoples have learned the Canadian legal system have, have had it forced upon our communities and nations, whe you know, without consent had to accept that they operate on these lands and, uh, to various degrees intervene with relationships. So what's the, the reciprocal, uh, obligation in that? And, and that would be to learn, uh, for non-indigenous Canadians to learn the legal orders that exist on these lands to exercise some humility. And in realizing that Canadian law is not the only legal order that matters, that as has any validity, uh, and accepting that, and I, I, I love professor's use of not jurisdiction, but, uh, perhaps, um, of responsibility on the land, which in, in, from my understandings and the teachings I've received really reckons and, and aligns with that role on the land. But I, I'm always nervous about using, uh, terms like responsibility as opposed to jurisdiction, because that can tend to give it less weight or legal importance from, uh, a legal practitioner. But if you, if you, uh, go into the, uh, particular legal order and you realize that responsibility actually has, uh, a legal impact and, uh, requires and expects of people to, to act again in certain ways, it, it is a aligned with jurisdiction. It just doesn't, it's shedding some of that Eurocentric baggage that is brought over on the boat<laugh>, uh, when it, when it's applied here. So to understand, to take the time to learn the calls to action, uh, are asking for it. Undrip certainly, uh, invokes it that we are in relationship, that the Canadian legal system is in relationship, that indigenous legal orders comprise part of that co Canadian legal system. Uh, and, and it, I think requires legal practitioners to learn, particularly in those areas where they're practicing the laws of the, the land and the people, uh, of that geographic area, uh, such that the responsibilities can be shared and exercised in a shared manner, which again, is, is a court is living by a legal, uh, principle that will arise in its own context, in its own nuanced way, from that own, from that legal knowledge and ontological epistemological perspective of, of the community in that space.

Speaker 3: 40:11

I mean, that's, that makes a lot of sense. Um, but thinking for or not, but, and then moving, you know, taking that, that underlying concept of there being an, you know, I would say, you know, you've encouraged, but also, you know, an, an obligation on, on Western trained and especially settler judges, lawyers and advocates to, to, to engage in that learning, um, because this is a, this is an Advocate Society podcast, so a lot of the people, you know, listening here that are used to going to court or to, uh, tribunals, to these various adversarial environments where decision making is made within the, the framework of the Canadian state. What is, and obviously there's transformational work to be done on, on an institutional level, but where decisions should be made, but within those existing institutions, uh, do, do you, and I guess I'd open this to all three of you. Where, where, if at all, do you see opportunity for Canadian courts and tribunals to make decisions using indigenous law and what, what, you know, laws and traditions, what does that look like in, in practice? Or does it look like anything in practice?

Speaker 6: 41:14

Yeah, and I, I think the important, the important component to this is to, to recognize we can't expect to visit this on the backs of indigenous people as, as creating another obligation to now teach, uh, non-indigenous people these legal systems. There's a lot of material, there's a lot of, lot of resources. There's a lot of work that has been done and is continuing to be done that people to, you know, to which people can turn to develop some kind of background, some kind of foundation of understanding. And then that will be defined, uh, more fluently as people are in relation with others, with communities in whether it's negotiations, uh, working together, taking, embracing that humility and, and ex and recognizing that, uh, there is authority that, that indigenous people hold to the lands. And there's a knowledge that that grounds the relationships and the decisions that are made, the processes, uh, that are, that people apply to make decisions about how these relationships can be protected and maintained without destroying everything around. You know, those opportunities when it, whether it's through consultation or negotiation or, you know, if, if something happens in litigation, those are opportunities to learn. But there can be a lot of dur learning done before something ends up in a court. But even when, you know, when it does, when, uh, a a first nation, you know, sets out to, um, prove Aboriginal title, which is a, a Canadian legal construct, you know, justice Vicker spent several weeks in the Henny Guin community, uh, listening to elders. I mean, you go out into the community when you're invited and you have an open mind and, and be prepared to learn. And over time that that will develop this, you know, this shared understanding, uh, will develop. And, and as long as we're applying those foundational principles, uh, however nuanced, uh, from particular context, then it will happen. I mean, it's, you know, it's not something that's gonna happen overnight, and we just put ourselves in a position to, to take those opportunities and also invest in our ourselves in the information and knowledge and teachings that are already openly available. I mean, is is a great start.

Speaker 4: 43:41

Yeah, I think that's a really great question, aria. And building upon the ideas around, um, negotiation and consultation and litigation and, and, um, that foundational learning that needs to happen. The way that I've seen it played out and in reading decisions from, uh, various Canadian courts is that these indigenous legal issues are coming about as a result of clients wanting to bring or plead indigenous legal issues or seeking, um, different procedural rights as well. And so one decision that I was reading, uh, within the last year, and it's in regards to the rest decision, and I think it was maybe on a, a motion, and in that case, yeah, I, it was, um, at the Ontario Superior Court, and I, I think this case is really interesting because there was smudging in the courtroom for the hearing that happened. It was a really long hearing. Um, and then it was also, uh, broadcast on video, um, so people could watch it on, like at home. I watched it. And for example, with smudging, I know that's been a really difficult issue even in non court situations where, say at the University of Victoria, for example, there at the law school, smudging was not permitted within the law school when I was there, but that's something, uh, that will be changed and that I had worked to create some discussions around. And so I think having these, um, different sort of procedural rights is really important. And, uh, you might think of it as procedural, but also I think also takes into account, um, indigenous spirituality. So, um, for example, swearing an oath with an eagle feather as opposed to, you know, swearing an oath to the Bible. A lot of indigenous people have a really fraught history with, um, churches as a result of missionization and colonization. And so it might seem very insignificant to others, but it's actually not. And so it has huge significant within indigenous societies. And so I think, I think about my own history as well, and I had asked to be called in my button blanket in Ontario in 2015 when I was called to the bar, and then more recently when I was called to the bar in British Columbia, uh, in Prince Rebury on my CIM territory, which is really important to me. And it was not easy process for me. Uh, in both situations. I, I had to write a letter, and I think it would be really great if law societies could take it upon themselves to have policies so that indigenous, um, soon to be lawyers don't have to ask for permission. It's just a given. And so, for example, when I was at the University of British Columbia and graduating from law school, I was told that, uh, I could wear my button blanket. I didn't have to ask. And I was so surprised. And so that's something that I carried with me when I went to Ontario. And it was in a different context. Of course, courts, um, you know, are very, uh, serious and, um, dealing with a lot of important issues. But I think it's important for both indigenous claimants who are in court situations dealing with negotiations or consultations or litigation where they don't have to hang up who they are at the door. They could come in through the door as they are and who, how they wanna represent themselves, however that may be. And so that could be inclusive of what they want to wear or smudging, but also, um, bringing those indigenous legal orders within the context of those discussions that are happening.

Speaker 3: 47:49

Thanks, that, that makes a lot of sense. And, and is really, uh, hopefully, uh, low hanging fruit to some extent for law societies across the country. See, I know there was a case recently where, uh, it was a spousal support case involving whether or not the, it was a divorce, uh, of a man and a woman living on, on, um, Mohawk territory in, in Ontario, where the question was whether Mohawk laws that was advanced by one of the parties, sh sh should apply, or whether the Ontario Family, Ontario's Family Law Act should apply. So that's, I think a really a concrete example of, uh, indigenous, uh, and Canadian legal systems interacting in practice. And I, I don't, I don't believe my understanding that case is, I think it's sort of ongoing, but I don't know if any of you had a reaction to that, that type of use of, uh, indigenous legal orders in a Canadian court, if that seemed like a good model, a model that needed improvement, you know, are are Canadian judges, folks who should be able to make decisions applying indigenous laws, notwithstanding that their training, you know, has primarily come in western legal traditions for most judges. I don't know if any of you have any thoughts on that as a, as an example of that being played out quite recently.

Speaker 5: 49:02

I'll jump in. This is a very sensitive topic, and I think there's a lot of room for diversity of opinion on, um, you know, the space in which indigenous laws and legal orders are given their best effect. And whether or not that can be realized in the context of an adversarial process in the context of a Canadian courtroom with a non-indigenous judge deciding, um, you know, we can take a lot of different positions on that. I do know that, um, more recently, I, there has been a shift in the dialogue, and at a C I A J conference in the fall of 2021 in Vancouver, the chief justice, uh, of British Columbia said very clearly, you know, there are these spaces in which we should be providing deference to the exercise of indigenous laws and legal orders and to their own institutions of decision making. And I think that that was a very powerful statement. Um, courts are very powerful in our, in our, uh, in, in our social construct in Canada. And, you know, to have someone in a position of authority recognize that there are spaces in which indigenous laws don't need to be mediated is extremely important. And, uh, currently the federal court has undertaken a pilot where they'll be working with something akin to assessors in, uh, maritime law where they would have indigenous legal experts assisting, uh, the decision makers because of exactly what you've identified. Our Canadian judges are not trained in indigenous laws and legal orders. I would be remiss to enter into Aller, Christina's territory and say, you know, that any knowledge that I have of indigenous law would directly apply it in that particular context. So, you know, the idea of being creative around how these systems of law are interacting, understanding questions of jurisdiction and, and that deep jurisdiction that we've been referring to, like how we assume sets of responsibilities, how we look at, you know, places and geographies as jurisdiction, but as of people as jurisdiction and subject matter as jurisdiction, like all of these complex ideas around how we make decisions for who and where are all things that we should be talking about. So I don't think there's one sort of magic approach to, uh, how we treat indigenous law going forward. I think it, the magic is in the conversations, the humility, the honesty, the openness, the self-determination. That's all part of how we get to, uh, that place that is absolutely necessary that we go towards, which is a proper recognition of indigenous laws and legal orders.

Speaker 3: 51:44

Thanks, that, that makes a lot of sense. And Christina, I I have a question for you, and if it's, if it's, uh, I have a personal question, so you can decline to answer if you want, but I know that you have an act of legal practice in the Canadian legal system right now. You spoke a little bit before about some of the challenges you faced even being called to the bar. I in a way that also reflected who, who you were. Can you talk a little bit about how it feels to, to be practicing in, in that system with its existing limitations?

Speaker 4: 52:18

I think we're all lawyers on the call too, so, um, I think the others can speak to this as well, but I have to say, yeah, practicing in the pandemic, I think especially is a unique scenario because it, it's a little bit hard to answer this question because I think just about like, okay, my physicality. So like, I'm in this room in Prince Super and this is where I practice. This is like sort of what I know and I'm in front of my computer most of the day, but what I'm actually doing at my computer is the practice of law. And when I'm writing memos or when I'm, you know, working on presentations or working on developing a lot for First Nations or, you know, um, working on different governance matters, and I speak a lot with my clients and my job, I think a lot about my job as being a vector. And my job is to speak with my clients and listen to what they're saying.

Speaker 3: 53:18

I want to ask, uh, professor Hannah, about your experience specifically teaching in the j I D program. So for those listeners who, who don't know what that is, that's the first, unlike the traditional JD program, which, you know, teaches, teaches in the Western law tradition, the G I D program is the first indigenous law focused program at a Canadian university that I'm aware of at the University of Victoria. And I think would be really interesting to hear what that, what this work looks like on the ground. You know, looping back to the, to the concept of training next generations.

Speaker 6: 53:52

I'll start by saying I, I think, um, many of us teach in a trans systemic or an inter societal manner, even in a jd a JD program, because that's the, the knowledge of law that we bring to bear on, on these courses. So, which is what I was doing, uh, when I was teaching as a sessional before being hired to teach in the j I D program, particularly in the context of, uh, constitutional law, thinking about those questions in terms of, uh, my understanding of indigenous legal orders. So what I'm teaching is inter societal, uh, contract law. So a heavy component of that is, is in particular the, the common law law of contracts and, um, the rules associated with that. And I bring that into conversation with the concept of voluntary obligations, agreements, responsibilities held under those agreements from indigenous legal perspectives. And I looked to Shwe, I looked to Te Corine, I look to d a indigenous legal orders as examples. I don't specifically teach anybody else's law, uh, but we have conversations about them, and I certainly am, I'm, I don't teach about, uh, a comparative analysis of, you know, here's what Juan's doing and how does that compare with's another, uh, because the concepts don't really align. But that doesn't mean we can't have conversations about what is operating within these different legal perspectives. What is it that, you know, what does the law say under the common law that, uh, compels people to fulfill their obligations or breach their contract? Uh, how is law enforced? That's a different conversation than saying, you know, than asking a similar type question. What is, you know, what are the obligations, the responsibility that compels somebody to fulfill their, their, uh, relationship, their agreement with another party? I mean, even the parties differ in, in terms of, um, common law contracts and, uh, indigenous legal orders, uh, some of which those parties, you know, asked the question to my students. Uh, can a moose be party to a contract Well in, in a given indigenous legal order? Yes, they, they can, and they are, but depending on how we're defining contract, but certainly to an agreement that gives rise to obligations on both parties. So a lot of it comes down to being able to, um, to do some manner of translation and interpretation, to be able to have, have conversations across legal orders that are meaningful and make sense and respect the, the origins and the context of those legal orders.

Speaker 3: 56:56

Is there anything that you want to say that, you know, I haven't asked about or feels like sort of a burning point that you wanna make?

Speaker 5: 57:04

The experts in indigenous laws and legal orders are the people who have been born into it, who have lived it all of their lifetime. And there's no substitute for that. So even those who advocate alongside and with and for indigenous, uh, nations need to place those knowledge holders at the front and center of revitalization in any advocacy that's happening around indigenous laws and legal orders. And any of us who are doing that work have acknowledged, continue to acknowledge that we're in a lifelong learning process and, uh, and really deeply commit to that. And so I'd encourage everyone who's listening to learn as much as they can about the laws, uh, of the territory in, in which they're, they're living and and beyond. Um, but never to assume that, uh, that you, uh, have, have learned at all that you have to continue to live it, have to continue to learn it for a lifetime.

Speaker 7: 58:00

Thank you to Area Alaskan and her guest on the podcast Professor Amy Craft, professor Alan Hannah and Christina Gray for their highly educational and insightful conversation. Thank you also to my co-editor, Hale, our production leads Kristin Drew Hammer, and the for support. This is Ian Coor of the podcast signing

Speaker 1: 58:25

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Speaker 2: 59:13

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Speaker 1: 59:19

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Speaker 2: 59:40

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