New Call Identifies Rough Waters of Justice

As an Anishinaabe woman, my law school peers were curious about my interest in pursuing a career with the Crown. At the time, I had spent a decade in public service and understood the need to both attract and retain Indigenous peoples in all places, and in particular where the administration of so-called “Indian affairs” is at stake. I was thrilled to be selected to complete my articles in the Department of Justice’s Legal Excellence Program. As an articling student, I worked with experienced Indigenous and non-Indigenous lawyers on matters engaging issues of national importance, including work that furthered Indigenous rights and the united goal of reconciliation in Canada.

After being called to the bar, I took another Crown job, advising on issues relating to Indigenous peoples, rights, and the land. There, I recently celebrated 15 years in public service. As a new call, I look forward to my legal career, while recognizing certain obstacles lie ahead, particularly the undercurrents within the bar that impair our collective navigation toward right relations and reconciliation.

As a graduate of the University of Victoria’s joint degree program in common law and Indigenous legal orders (JD/JID), transitioning from law student to lawyer has revealed unique challenges. In the classroom, professors encouraged students to consider both what the law provides and to dream about where it is headed, especially in the context of Aboriginal law, revitalization of Indigenous legal frameworks, and recognition of Canada as a multi-juridical landscape in contrast to the prevailing bijural narrative. Conversely, law students situated elsewhere receive disparate teachings that fail to recognize the inherent legitimacy of Indigenous laws, defaulting instead to a narrative that advances the supremacy of colonial authorities and therefore contributing to the turbulent aspect of law practice. As such, navigating from a platform that urged creative thinking to an institution that moves cautiously and deliberately provided new lessons on the values of consistency and diplomacy. I expect such lessons will continue to serve me as I move forward in my career.

Lawyers are uniquely situated within society. We pledge to uphold the rule of law and the rights and freedoms of all persons. The trouble with this obligation is that the starting point varies in terms of the collective understanding of the content of the rule of law. For instance, legal culture and education largely perpetuates a bijural portrait of Canada, ignoring the fact that Indigenous laws pre-date the reception of the laws of England and France. Such ignorance functions to uphold notions of colonial supremacy where law and order is concerned and gets in the way of meaningful recognition of the nation-to-nation treaty partnership. Moreover, this bijural narrative has been passed down by generations of lawyers and remains firmly anchored within the legal system, a detriment to Indigenous normative frameworks for living.

Though notable voices—for instance, John Borrows, Val Napoleon, and Naiomi Metallic—work to reframe the narrative, such recharacterization is not happening at the necessary pace and scale required to breathe life into the factual reality on the ground. Critically, justice is not served when law is a set of rigid conventions, frozen in time, incapable of reconstituting a better reflection of the historical reality. Accordingly, there is an urgent need for legal analysis to account for the legitimacy of Indigenous laws and for lawyers to advance the coexistence of common, civilian, and Indigenous legal frameworks.

Those of us who commit our lives to the practice of Aboriginal law generally do so with the goal of improving the lives of Indigenous peoples and contributing towards the renewal of Crown-Indigenous relations. This ambition, however, is constrained when: (i) the supremacy of colonial frameworks is upheld; (ii) the Crown’s de facto assertion of control remains unquestioned; and (iii) there is a failure to meaningfully recognize the fact that Indigenous nations occupied these territories prior to the arrival of Europeans. Such convictions necessarily impact the pace of negotiations, transfer of jurisdiction efforts, and the relationship between governing entities and Indigenous peoples. 

Since the release of the Truth and Reconciliation Commission’s Calls to Action, Canadian law schools have slowly begun to ensure truth is woven throughout the curriculum to further reconciliation and recognition of Indigenous legal frameworks. More, however, is required. Law societies, for instance, could do more to ensure lawyers understand that the laws of Canada include Indigenous laws and that the recognition of such is a duty and responsibility of practicing law. Meaningful recognition across the bar should then inform legal analysis and the options presented to client decision-makers where Indigenous rights are at stake.

The good news is that there is room within the laws of Canada—and certainly in the classroom—to both recognize and respect the autonomy and authority underlying Indigenous legal orders. After all, Canada’s historical narrative espouses coexistence and harmonization. Therefore, the hurdle to harmonizing colonial legal frameworks and Indigenous laws is objectively unclear. If there is greater movement toward understanding law as a story that is capable of being reimagined and reconstituted, the practice of law will get closer to effecting real justice.