University of Alberta Faculty of Law Blog

Feature on Action & Justice Everyday: The Individual duty of Reconciliation

Tansi Nîtôtemtik,

Yes, we've said our goodbyes for the year and wrapped things up for the term.  As it turns out, it is hard to stay away when there is so much happening every day and we have been given this opportunity to use our voice.  

Today we want to highlight another blog that we feel brings an important personal context to the social and legal issues faced by Indigenous people in Canada. 

On his blog, Action & Justice Everyday, Community Organizer & Public Speaker, Michael Redhead Champagne recently asked the following question: Which Calls to Action/Calls for Justice do you work on every day?

Most of the focus on the ReconciliAction YEG blog has been geared toward the systems where the injustices against Indigenous people originated and continue to be perpetuated.  Reconciliation, to our team, is the duty that these systems have to right these historic wrongs and take active steps that will improve nation-to-nation relations and eliminate the ongoing systemic discrimination.  Champagne's post brings attention to the fact that reconciliation isn't just about systemic level oppression and action, but about efforts made at the individual level as well.  

The post first draws attention to the TRC Calls to Action released 5 years ago, the Report of the Inquiry on MMIWG Calls to Justice released in 2018, and the UN Declaration on the Rights of Indigenous people, before highlighting just a small sampling of recent events that illustrate how much work is still to be done. 

Champagne encourages non-Indigenous Canadians who want to further reconciliation to take some of the duty of reconciliation upon themselves.  He provides the following simple framework to do this: 

1. Read the MMIWG and TRC reports.

   • Bonus if you include additional reports like UNDRIP, or regional documents too

2. Select at least one Call to Action (TRC) and one Call for Justice (MMIWG)

3. Write them down and put them somewhere that you will see them everyday

   • we have to face this every day, join us in our pain so we can celebrate our victories and our healing together

4. Take action at every available opportunity yourself

5. Encourage your family, friends, co-workers, workplaces and communities to do the same

Team ReconciliAction couldn't agree more that these reports (even just the summaries) are so important for Canadians to read. Plus, with 94 Calls to Action and 231 Calls for Justice, there is surely a Call that can speak to everyone on an individual level. 

You can read the full Action & Justice Everyday post here: 

https://www.michaelredheadchampagne.com/blog/action-justice-everyday

The MMIWG Report and Calls for Justice can be found here: 

https://www.mmiwg-ffada.ca/final-report/

The TRC Summary and Calls to Action can be found here:

http://nctr.ca/reports.php

Let us know which Call to Action or Call for Justice you plan to work on every day in the comments below!

Until next time, 

Team ReconciliAction

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2020 Year End Reflections

Tansi Nîtôtemtik,

For our final blog post of 2020, we want to take this opportunity to reflect on what we learned and loved these past 3 months. 

Sarah

This blog so far has been a highlight of my legal education. The process of diving into new research for each Call to Action has put into perspective the careful consideration and consultation that went into preparing the TRC report. It's truly unfortunate that 5 years on, we've seen so little Action in response to the Calls.  I'm honored for the opportunity to research a topic that is so important and to add my voice to the demand for truth and for action toward reconciliation. With that, I'll sign off until 2021.  I wish everyone a safe December holiday full of good food and warm messages from the loved ones we may not get to see this year.   

 

Tamya

Over the past 3 months, I’ve learned so much about the current reality of reconciliation in Canada. Each Call to Action reflects a unique and important issue that needs to be addressed for reconciliation to move forward, and learning about these topics each week has given me a deeper understanding of what needs to be done. One theme that has really stood out to me is the lack of data collected regarding different outcomes for Indigenous peoples in relation to the rest of the Canadian population. This is just one example of how inequities continue to be perpetuated, because we simply don’t know the scope of the issues facing Indigenous peoples in Canada. That needs to change.  

I’m really looking forward to delving into the next 44 Calls to Action in 2021, and hope you continue to follow our posts in the new year. Happy Holidays! 

 

Anita

It has truly been a pleasure working on this blog and being able to delve into areas of topics that I had previously not known enough about when it came to each of the TRC Calls to Action. To be able to bring those very important issues to light each week so others could understand and learn  alongside, has been such an honor. I was fortunate to be able to write about Orange Shirt day and its origins which led me to a webinar where Phyillis Webstad spoke about her experience at a residential school. There was so much emotion and  power behind her words that really brought home why we all fight for justice and against those who would hide from it. 

This coming new year will bring with it hope and possibilities like it always seems to, and that is my wish for everyone this holiday. Looking forward to continuing on with the remaining Calls to Action and I will see you in the new year. Have a wonderful Christmas Holiday!

 

Tyler

The process of researching and writing is remarkably more enjoyable when done in a team setting - especially when that team is abundantly passionate about the project. Being able to work through blog posts with questions and communication with this team has been a highlight thus far. 

Through the first half, I have been learning just how malleable the concept of ‘reconciliation’ really is. Its meaning has this inane ability to shift and warp to suit political agendas and mandates - which allows for less and less substantive work to be done. I’m looking forward to see what the second half has in store.

Wishing everyone safe and restful holidays,

Teresa

I have thoroughly enjoyed researching my own posts and reading the carefully curated content my teammates have written. However, my favorite aspect of the semester was discovering new Indigenous artists to profile on our social media pages. From Dr. Val Napoleon to Joshua Pawis-Steckley, every artist’s painting and drawing is rich with Indigenous culture, stories, and history. It was a pleasure to sift through these visual interpretations of reconciliation and share them with our followers. These incredible artists have a gift for engaging the emotions I feel as I learn more about the steps Canada is and isn’t taking to rebuild the relationship with First Nation, Métis and Inuit peoples. I am looking forward to discovering additional artists in 2021.

Wishing you a healthy and happy holiday season, 

Team ReconciliAction

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5 Years After TRC: Midpoint Recap

Tansi Nîtôtemtik,

As Team ReconciliAction gets ready to sign off for the semester, we wanted to take today to provide a report card for the TRC Calls to Action we have covered so far this year.  Check back tomorrow for our reflections on this term.  

So how is Canada doing on Calls to Action numbers 1 through 49?  Check out our infographic below, and let us know if you agree with our evaluation so far of Canada's response to the TRC to far. 

 

That's it for substantive material for this semester. We hope you've enjoyed reading, and be sure to check back tomorrow so we can say goodbye until 2021!

Until next time, 

Team ReconciliAction YEG

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TRC 5 Years Later: Royal Proclamation and Covenant of Reconciliation

Tansi Nîtôtemtik,

Today on the blog, we are evaluating Canada’s efforts to respond to Calls to Action #45 and #46, relating to a Royal Proclamation and a Covenant of Reconciliation.

Call to Action #45 states, in part:

We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.

Call to Action #46 calls on “the parties to the Indian Residential Schools Settlement Agreement to develop and sign a Covenant of Reconciliation that would identify principles for working collaboratively to advance reconciliation in Canadian society.”

Both Calls recommend that the proclamation and covenant include commitments to:

1. Repudiate concepts used to justify European sovereignty over Indigenous lands and people,
2. Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for reconciliation,
3. Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future, and
4. Recognize and integrate Indigenous laws and legal traditions.^[1]

(Image: Royal Proclamation of 1763, Library and Archives Canada)

Call #45: Royal Proclamation

When King George III issued a Royal Proclamation in 1763, the relationship between Indigenous and non-Indigenous peoples was intended to be nation-to-nation, based on peace, fairness, and mutual respect.^[2] Unfortunately, the relationship from Confederation to modern times has been guided by the Indian Act, rather than the principles contained in the Royal Proclamation. The TRC calls for a new Royal Proclamation of Reconciliation that represents the long-standing commitments between Indigenous people and Canada, issued from the highest level of authority.^[3]

The government response on Call #45 ignores the central tenets entirely. They have not made a Royal Proclamation of Reconciliation, they have not implemented UNDRIP as a framework for reconciliation , and Canada has not formally repudiated the Doctrine of Discovery or terra nullius .

The Government of Canada cites the release of two documents as evidence that progress has been made on Call to Action #45. These are the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (the Principles)^[4] and the Directive on Civil Litigation Involving Indigenous Peoples (the Directive).^[5]  

The Principles state throughout that  the Government of Canada “recognizes” what is needed to achieve reconciliation with Indigenous people, but there is still no formal recognition and acknowledgement of aboriginal laws and legal tradition. This does not align with UNDRIP. According to the Government of Canada, the Principles “[reflect] Articles 3 and 4 of [UNDRIP]” and reflect “UNDRIP’s call to respect and promote the inherent rights of Indigenous peoples.”^[6] Nothing in Articles 3 and 4 of UNDRIP speaks of respecting or promoting Indigenous peoples’ right to autonomy or self-government. The Articles say “Indigenous people have the right to self-determination” and “Indigenous peoples [...] have the right to autonomy and self-government”.^[7]

The federal government’s plan for promoting the inherent rights of Indigenous peoples is summarized as “changes in the operating practices and processes of the federal government.”^[8] This allegedly includes “continu[ing]the process of decolonization and hasten[ing] the end of its legacy wherever it remains in our laws and policies.” There is no action plan. The only measures being taken to implement Call #45 equate to “lip service”.

On a more positive note, on December 2nd, the Government of Northwest Territories (GNWT) announced a new protocol to “grant the territorial government and Indigenous leaders equal decision-making power on land and resource management”. ^[9]The territory’s Premier, Caroline Cochrane, said the protocol departs from the duty to consult model that always gave the GNWT the final say on project implementation. Instead, this new protocol recognizes that “[t]he GNWT is not the higher government. We are equal at the table.”^[10] This is an incredible step taken by the territory, that is actually in line with the nation-to-nation governance relationship advocated for in Call #45 by the TRC. Bravo, GNWT.

Independent researchers are also making substantive progress on Call #45, with the support of federal research funding. The Rebuilding First Nations Governance (RFNG) project is a “community-led research, reflection and action” project led by a national alliance of First Nation communities, Tribal Councils, academics, and public sector members to revitalize Indigenous governance practices and transition away from the Indian Act.^[11] The project is supported by a $2.5 million Social Sciences and Humanities Research Council grant.^[12]

Unfortunately, the Government of Canada has not made meaningful progress on Call to Action #45, so we award an F. Fortunately, other Canadian stakeholders are stepping up to repair Canada’s relationship with Indigenous people. We hope the Government of Canada is taking notes on their progress.

Call #46: Covenant of Reconciliation

The Church parties to the Indian Residential Schools Settlement Agreement were partners with the Government of Canada in running Residential Schools. These parties have welcomed the TRC’s Calls to Action for a new Covenant of Reconciliation “that would renew and expand our shared commitment to the continuing work of reconciliation.”^[13]

According to the Government of Canada website, the federal government has held preliminary discussions with the Indian Residential Schools Settlement Agreement parties about implementing this Call. The government is currently “reviewing concepts that have been used to justify European sovereignty”.^[14] Other than this update, it appears any progress on Call #46 is stalled. We award Canada an F for this Call.

 

Until Next Time,

Team ReconciliAction

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^[1] Canada, Truth and Reconciliation Commission, Honouring the Truth and Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015 at 199-200.

^[2] Ibid at 196, 198.

^[3] Ibid at 199.

^[4] Government of Canada, “Royal Proclamation and Covenant of Reconciliation”, online: https://www.rcaanc-cirnac.gc.ca/eng/1524503097736/155751398230 [Canada].

^[5] Ibid.

^[6] Department of Justice Canada, “Principles respecting the Government of Canada’s relationship with Indigenous peoples”, online: https://www.justice.gc.ca/eng/csj-sjc/principles-principes.html [Principles]

^[7] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/61/295 (2007), arts 3-4 [emphasis added].

^[8] Principles, supra note 6.

^[9] Natalie Pressman, “New Protocol makes GNWT and Indigenous leaders equal decision-makers on land and resource management”, NNSL Media (3 December 2020), online: https://nnsl.com/yellowknifer/new-protocol-makes-gnwt-and-indigenous-leaders-equal-decision-makers-on-land-and-resource-management/.

^[10] Ibid.

^[11] Carleton University, “Rebuilding First Nations Governance”, online: https://carleton.ca/rfng/.

^[12] Ibid.

^[13] Archbishop Fred Hiltz, Rev Dr Stephen Farris, et al, “Response of the Churches to the Truth and Reconciliation Commission of Canada” (2 June 2015) , online (pdf): https://united-church.ca/sites/default/files/trc-churches-respond.pdf

^[14] Canada, supra note 1.

Call #47: The Continued Existence of the 'Doctrine of Discovery' in Canada

 

Tansi Nîtôtemtik,

 

Call 47 is as follows:

We call upon federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.

 

The Doctrine of Discovery and Terra Nullius are related yet distinct legal concepts that both underlie and inform the modern Canadian legal and constitutional structure.

 

The Doctrine of Discovery

 

As we outlined in a blog post from September, the ‘Doctrine of Discovery’ was the lens through which European theocratic monarchies viewed the world as theirs for the taking, its modern origins forming in the 15^th century.[1] It espoused that Non-Christians lacked the basic humanity to lay claim to land and exist as free and equal people. The Doctrine of Discovery allowed European entities to unilaterally ‘discover’ not only exclusive fee title to the land, but sovereign governmental rights over the Indigenous people ‘occupying’ such land.[2] It first officially entered the North American  Jurisprudence in 1832, with the decision of Johnson v M’Intosh,[3] - a decision based on ‘[…] self-serving, imperialist foundations, rife with glaringly apparent racist assumptions.’ [4]

 

Terra Nullius, translated directly to ‘nobody’s land’ goes a step forward and discredits the very existence of Indigenous people. This was a central approach taken up in Australia which was one factor leading to Indigenous people being governed under the Australian Department of Fisheries into the 20^th century.[5] While the Supreme Court in Tsilhqot’in Nation asserted that Terra Nullius never applied in Canada,[6] this is more accurate in the history of Upper and Lower Canada and does not account for the broad history across Canada. Terra Nullius does have a history in the formation of the colony of British Columbia. Joseph Trutch, the first Lieutenant Governor of British Columbia, asserted policies based in Terra Nullius that eroded Indigenous Title before British Columbia entered into Confederation in 1871.[7]

 

In Response to Call to Action 47, the Federal Government has stated the following:

 

“In May 2017, at the United Nations Permanent Forum on Indigenous Issues, the Government of Canada publicly stated: "The Doctrine of Discovery has no place in Canada's relationship with Indigenous peoples." Further, in 2014, the Supreme Court of Canada confirmed the concept of terra nullius never applied in Canada, as confirmed by the Royal Proclamation of 1763.”[8]

 

Such a declaration does not simply wash away how these principles have deeply embedded into the Aboriginal Law jurisprudence. As mentioned last week, section 35(1) of the Constitution Act, which purports to be the “full box of rights,” is grounded in a conception of  ‘reconciliation’ which necessarily entails the unilateral assertion of Crown sovereignty over Indigenous peoples and their land. There is no other justification for this unquestioned initial assertion of Crown Sovereignty over Indigenous people than an adherence to the principles of the Doctrine of Discovery.[9] In order to establish a 35(1) right, Indigenous groups must prove a ‘pre-existing’ right, – the notion of ‘pre-existing’ being intrinsically linked to the artificial declaration of Crown sovereignty, supported by the Doctrine of Discovery.[10]

 

It is interesting to note that the language used in the Federal government’s statements has not directly confronted that the Doctrine of Discovery underpins the Canadian state and legal system. They have stated that the Doctrine of Discovery ‘has no place’ in Canada’s relationship, and have relied on the Supreme Court’s denunciation of Terra Nullius, but it is yet to directly confront the known reality of the Doctrine of Discovery and how it continues to inform Aboriginal Law.

 

The Adversarial nature of the common law system means that Crown representatives are going to continue to using arguments embedded in the Doctrine of Discovery if it is advantageous to their argument in limiting Aboriginal Rights. This has been seen up until the most recent section 35(1) case heard before the Supreme Court of Canada, R v DeSautel.[11]

 

While this would perhaps be among the most difficult Call to Action to address, as it goes to the core of Canada's existence, we have no choice but to award an F.

 

Until Tomorrow,

 

Team ReconciliAction YEG

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[1]Robert J Miller, "The Doctrine of Discovery in American Indian Law" (2005) 42:1 Idaho L Rev 1.The Doctrine’s origins can be traced to the Crusades and Christian claims to the ‘Holy Lands’ in 1096-1271.

[2] Ibid. 

[3]Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)

[4] Kent McNeil, "The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies" (2016) 53:2 Osgoode Hall LJ 699

[5] Western Australian Museum, "Right Wrongs: Dispelling Myths" (2017), online: <http://museum.wa.gov.au/referendum-1967/dispelling-myths>.

[6] Tsilhqot’in Nation  v. British Columbia, 2014 SCC 44 at 69.

[7] Bruce Granville Miller, “A Short Commentary on Land Claims in BC” (October 2003) online: https://www.ubcic.bc.ca/a_short_commentary_on_land_claims_in_bc.

[8]  Crown-Indigenous Relations and Northern Affairs Canada, "Delivering on Truth and Reconciliation Commission Calls to Action" (05 September 2019). online: <https://www.rcaanc-cirnac.gc.ca/eng/1524503097736/1557513982301>. 

[9] Joshua Ben David Nichols, A Reconciliation Without Recollection? (Toronto: University of Toronto Press, 2020) at 45.

[10] Ibid.

[11] R v DeSautel, 2019 BCCA 151.

Re: TRC Call to Action #48 & 49: Settlement Agreement Parties and UNDRIP

48. We call upon the church parties to the Settlement Agreement, and all other faith groups and interfaith social justice groups in Canada who have not already done so, to formally adopt and comply with the principles, norms, and standards of the United Nations Declaration on the Rights of Indigenous Peoples as a framework for reconciliation. This would include, but not be limited to, the following commitments:

       i.  Ensuring that their institutions, policies, programs, and practices comply with the United Nations Declaration on the Rights of Indigenous Peoples.

      ii. Respecting Indigenous peoples’ right to self determination in spiritual matters, including the right to practise,  develop, and teach their own spiritual and religious traditions, customs, and ceremonies, consistent with Article 12:1 of the United Nations Declaration on the Rights of Indigenous Peoples.

      iii. Engaging in ongoing public dialogue and actions to support the United Nations Declaration on the Rights of Indigenous Peoples.

      iv. Issuing a statement no later than March 31, 2016, from all religious denominations and faith groups, as to how  they will implement the United Nations Declaration on the Rights of Indigenous Peoples.

49. We call upon all religious denominations and faith groups who have not already done so to repudiate concepts used to justify European sovereignty over Indigenous lands and peoples, such as the Doctrine of Discovery and terra nullius.[1]

Tansi Nîtôtemtik,

These Calls to Action are some of the few that do not call on any level of government for implementation, but rather the Churches themselves.  There is no doubt that the organizations who facilitated and ran the  Residential Schools should be held accountable for the role they played, and provide an apology . Yet  this does not diminish the role of the Canadian government, because it was their mandate to indoctrinate and assimilate a people which ended up tearing families apart and being a central root of Intergenerational trauma.  

Taking another step forward includes adopting the principles set out in United Nations Declaration of Indigenous Peoples (UNDRIP)[2] that condemn the Doctrine of Discovery, whose consequences have had devastating effects for Indigenous peoples.  It is a doctrine that is based on an immoral and illegal principle, and has no place domestically or internationally.. [3]

Call to Action #48 and #49 reflect the pivotal role that the churches played in the residential school programs and the unmeasurable harms that resulted. . The demand for each organization involved to release and issue a statement no later than March 31, 2016 has been met with some success.

Our post today will be just a little bit different so we could provide our readers with a table of who has done what and when, at a glance. See the table below for the churches/ organizations and correlating responses.

Church Organization	Date of Response and/or Statement
Joint Response of the Roman Catholic, Anglican, Presbyterian & United	June 2015 Statement Apology on Residential Schools by the Catholic Church (cccb.ca)
United Church of Canada	March 2016 Statement Apology to Former Students of United Church Indian Residential Schools, and to Their Families and Communities (united-church.ca)
Presbyterian Church in Canada	June 9, 1994 Confessions of the Presbyterian Church in Canada  Confession of the Presbyterian Church in Canada
Canadian Conference of Catholic Bishops	Statement  on website: Canadian Conference of Catholic Bishops (cccb.ca)
Anglican Church of Canada	August 6, 1993/March 19, 2016 Statement Anglican Church of Canada’s apology for residential schools
Anabaptist Church Leaders, Mennonite Central Committee (MCC)	July 31, 2017 Statement MCC’s response to the TRC Calls To Action 48 and 49 | Mennonite Central Committee Canada (mcccanada.ca)
Canadian Friends Service Committer (Quakers)	August 22, 2013 Statement of Doctrine of Discovery and continued advocacy. CFSC staff coordinated and participated in two events at the closing ceremonies of the TRC in June 2015. Canadian Friends Service Committee (Quakers) (quakerservice.ca)
Canadian Interfaith Conversation	March 28, 2016 – Statement on the Importance of the Truth and Reconciliation and the Rights of Indigenous Peoples Canadian Interfaith Conversation
Citizens for Public Justice	March 29, 2016 Statement http://www.cpj.ca/statement-cpj-trc-calls-action
Evangelical Lutheran Church in Canada	March 2016 Statement in response to TRC and UNDRIP Evangelical Lutheran Church in Canada (elcic.ca)
First United Church (Ottawa)	March 22, 2016 Statement in response to TRC and UNDRIP First United Church (kairoscanada.org)
Holy Cross Fathers English Canada	February 2016 Statement in response to TRC and UNDRIP Holy Cross Fathers English Canada (holycrossjustice.org)
Reseau Oecumenique Justice et Paix	March 2016 – Statement Réseau Oecuménique Justice et Paix (justicepaix.org)
The Salvation Army	March 30, 2016 Statement in response to TRC and UNDRIP The Salvation Army (salvationist.ca)

(Disclaimer: This list is not exhaustive)

Since the early 1990s, Canadian churches have been publicly apologizing for their role in the Residential School system. More recently, Canadian federal and provincial governments have now formally apologized for the creation and forced attendance of the schools, the abuses suffered at the schools, and for the horrific effects they caused. These apologies have been the beginning of healing in their acknowledgement. 

It would be difficult to give Canada a grade here so they get no grade. 

Until Next Time, 

Team ReconciliAction YEG

 

[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) [TRC].

[2]  United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess,UN Doc A/61/295 (2007) [UNDRIP].

[3]Assembly of First Nations, “Dismantling the Doctrine of Discovery” (Jan 2018) online (pdf):  18-01-22-Dismantling-the-Doctrine-of-Discovery-EN.pdf (afn.ca) 

Establishing Indigenous Law Institutes

Tansi Nîtôtemtik,

Today we move on to the TRC Calls to Action on Equity for Aboriginal People in the Legal System. The first of these Calls to Action is:

50. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.^[1]

We have discussed the United Nations Declaration on the Rights of Indigenous Peoples, (“UNDRIP”) in our previous posts titled "TRC 5 Years Later: United Nations Declaration on the Rights of Indigenous Peoples” and "Indigenous Bar Conference Day 2/ Indigenous Rights at the forefront of Crisis in Canada - Honorable Jody Wilson-Raybould”. In Article 5 and 18, UNDRIP affirms the rights of Indigenous peoples to exercise jurisdiction over  their own laws and legal institutions. Article 5 acknowledges the right of Indigenous peoples to “maintain and strengthen their distinct political, legal, economic, social and cultural institutions”^[2] and Article 18 affirms the rights of Indigenous decision-making institutions. 

(Photo credit: Onondaga Nation, The Haudenosenee see the two-row wampum as a living treaty that represent the two ways of life between the Dutch settlers and Haudenosenee)

Indigenous peoples of Canada are diverse and have distinct legal orders and systems which have been used to maintain just and equitable societies since long before the colonization of their lands. These legal orders and systems carry distinct laws and understandings  of the same legal concepts that are fundamental to the governing Colonial law, such as those pertaining to property, evidence, and justice itself.^[3] 

Despite these distinctions, as Indigenous legal scholar Val Napoleon notes, “Indigenous law is concerned with the same human concerns as Canadian law including community safety, fairness, and accountability.”^[4] TRC Call to Action #50 emphasizes  the importance of creating a framework that promotes the use and development of Indigenous laws.

The Government of Canada proposed an investment of $10 million over five years towards Indigenous law initiatives through the Justice Partnership and Innovation Program in the 2019 budget, with a stated goal of improving “equality for Indigenous Peoples in Canada’s legal system.” ^[5]The call for proposals has now expired, and funding began in April 2020. 

Indigenous law institutes have emerged in response to Call to Action #50, and have taken on important access to justice work towards researching, developing and the codification of Indigenous law and access to justice. The Wahkohtowin Law and Governance Lodge at University of Alberta is one example of this emerging field of law, and has done important work to educate communities, carry out research and community engagement on resource needs, and produce governance resources.^[6] Another example is The University of Victoria which is in the process of establishing a National Indigenous Law Centre,^[7] that will exist in conjunction with its current Indigenous Law Research Unit. Both Wahkohtowin and the Indigenous Law Centre are funded, in part, by Government grants.^[8]

(Photo Credit: Wahohtowin Law & Governance Lodge)

The progress towards Call to Action #50 is promising. However, these institutions will require long-term funding commitments that prioritize the role of Indigenous law in the legal landscape of Canada. Only time will tell if these important institutions continue to be a priority for the colonial government. 

Until next time,

Team ReconciliAction YEG

¹Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) [TRC].

²United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess,UN Doc A/61/295 (2007), art 5 [UNDRIP].

³University of Toronto Libraries, “Indigenous legal traditions” (2018) online: <exhibits.library.utoronto.ca/exhibits/show/canadianlawandidentity/cdnlegalsystemhistory/cdnlegalsystemsindig#>.

⁴Val Napoleon, “What is Indigenous Law? A Small Discussion” (2016) online: accessed via Wahkohtowin Law and Governance Lodge page <www.ualberta.ca/wahkohtowin/research.html?1=IndigenousLaw>.

⁵Department of Justice, “Justice Partnership and Innovation Program “(4 Nov 2019) online: <www.justice.gc.ca/eng/fund-fina/jsp-sjp/pfo-pfc.html>.

⁶Wahkohtowin Law and Governance Lodge, “About” (2020) online: <www.ualberta.ca/wahkohtowin/index.html>.

⁷ CBC News, "University of Victoria to House national Indigneous Law Center" (3 Sep 2020) online:<www.cbc.ca/news/canada/british-columbia/uvic-national-indigenous-law-centre-announcement-1.5711550>.

⁸See Government of Canada, “Equity for Aboriginal people in the justice system” (5 Sep 2019) online: Delivering on Truth and Reconciliation Commission Calls to Action <https://www.rcaanc-cirnac.gc.ca/eng/1524503744418/1557511885830>. (“For example, through the Justice Partnership and Innovation Program, $134,127 has been provided to the University of Alberta for the development of the new Wahkohtowin Law and Governance Lodge, as announced by the Minister of Justice and Attorney General of Canada on August 14, 2019.”)