 Good afternoon and welcome everyone to the Shuley School of Law. My name is Camille Cameron, I'm the dean and I have the pleasure of welcoming you all here. This morning I welcomed the conference attendees, but now the group has expanded and so it's a pleasure again to extend a warm welcome to all of you. And again I will begin by acknowledging my welcome to you this afternoon that we are here today for this lecture gathering on traditional Big Mon territory. This is the 27th annual Ted Rickwire Memorial Lecture. The law school is delighted that we've been able to partner with the Nova Scotia Barrister Society to host this for these many years and we look forward to continuing that partnership. This year as you know the title is Ethics and Professionalism in the Practice of Aboriginal Law. It's especially timely now as law schools and the profession, among others, are responding to the TRC calls to action, in particular calls to action 27 and 28. And here I'm going to put in a plug for the law school. We're very proud of the efforts we've been making to respond to the calls to action. Kudos in particular to professors Metallic and Devlin and to our TRC working group who really have worked hard to ensure that we implement effective and meaningful ways of responding to the TRC calls to action. Before I turn things over to Julia Cornish, President of the Nova Scotia Barrister Society and to tell you a little bit about Ted Rickwire and to my colleague Professor Devlin who will introduce the panelists and the topic for today. I just want to acknowledge a few people. As you all know, any of you who've ever organized anything before know that you need help to make it happen. And so I want to mention a few people. First, my colleague Professor Richard Devlin for all of the work he's done to bring the conference and the lecture to fruition. Now Richard's going to come up and speak after me because I haven't been directly involved in the organizing. I'm sure there are people who've been involved that I won't know about so he's going to say thank you to them as well. I do want to mention Michelle Kirkwood as well. You've seen her here all day and we couldn't make this possible without her. Of course, I want to thank all of you, those who've come to the lecture and those of you who've been attending and who are attending the conference for your commitment to talking in a collaborative and productive way and a creative way about a topic as important as legal ethics and professionalism. As I say, I'm sure there are others and I'll leave it to Professor Devlin to say thank you to them. So again, welcome everyone. I'm delighted that you're here. I'm sure it's going to be an excellent presentation and I'm now going to call on Julia Cornish to tell us a little bit about the person for whom the lecture is named. Thank you, Dean Cameron. On behalf of the Nova Scotia Barris society, it's my pleasure to bring greetings and to spend a few minutes talking about the late Tedwick wire, the namesake for today's lecture. The legal profession, as indeed other professions, is under public scrutiny as never before. That is perhaps as it should be. We have, after all, a public trust of considerable magnitude. In furtherance of our obligations under this trust, we should have a more direct hand in the formulation of ethics and behavioral standards which are to prevail here. Anything less is an abdication of our responsibility. I wish I'd written those words, but I didn't. Tedwick wire wrote those words in 1990, but I think you would agree they are as true today as they were then. Mr. Wickwire was president of the society at the time of his death in 1991. His connection to this university was strong. He served 13 years on the board of governors after graduating with the Bachelor of Commerce in 1959 and an LLB in 1962. He accomplished this while quarterbacking the Dalhousie Tigers, I understand with some distinction, and playing varsity basketball as well. In 1991, he was posthumously awarded the Weldon Award for unselfish public service. Do no doubt, not only for his work as society president, but also as the first chairman of the Nova Scotia Legal Aid Commission and as chairman of the Bar Society's Legal Ethics Committee. Ted Wickwire's involvement with legal ethics went beyond his service on this committee. Under his leadership, the committee produced Nova Scotia's first legal ethics handbook, and my quotation was from the forward to that volume. When Mr. Wickwire died at the premature age of 52, the Halifax Herald praised him for championing two great legal causes, universal access to legal services, and professional standards for lawyers. Much has changed in the profession since 1991, and as the society struggles to evolve the profession and focus on becoming proactive, proportionate, and principled, there are certain things which remain the same. As Ted Wickwire concluded at the end of his forward to the legal ethics handbook, these changes must not come at the expense of our ethics and standards. In that spirit, I welcome everyone to today's panel. Thank you. So, as the Dean mentioned, this particular presentation today, this panel comes at a very significant moment in Canada. There are three things I want to say briefly to set the context for this panel. The first is that this panel was inspired and hard as a response to the Truth and Reconciliation Commission's calls for actions 26 and 27. And I know many of us are familiar with them, but there are some points that are worth briefly highlighting. One is that there's a call to the federation of lost size of Canada, and there are many members of the federation here today, so it's an attempt to sort of collaborate with the federation to ensure that lawyers receive appropriate cultural competency training. But one of the things they particularly emphasize is Aboriginal-crowned relations. And so this talk today, this panel today, is very much an inquiry and reflection, a reflection on the importance of thinking through Aboriginal-crowned relations. The call to action is also in 28, focuses on the law schools, including our own law school, and once again, it requires us to develop a course on Aboriginal people in the law, which we are working on at the law school here, and certainly at least in the first year, and certainly in the first year, Metallic has been foundational to us achieving that. But once again, it also calls upon us as law schools to focus on Aboriginal-crowned relations. So that's the first sort of framing moment here. The second framing moment is this talk also relates to the recent controversy in Ontario in its required statement of principles. In a 2016 report called Challenges Faced by Racialized Licensees, a working group of the Law Society of Upper Canada, which is actually not called the Law Society of Upper Canada, it's just called the Law Society of Somewhere. They haven't worked out where they are yet. They came out with 13 recommendations, and those recommendations were approved by convocation in December this year. However, one of these particular recommendations, it's actually recommendation 3-1 says, that each licensee in Ontario will be required to, quote-unquote, adopt and abide by a statement of principles, acknowledging their obligation to promote equality, diversity, and inclusion generally, and their behaviour towards colleagues, employees, clients, and the public. So clearly members of the Aboriginal community in Canada, or at least in Ontario, are clearly influenced or impacted by this requirement. What's blown up in the last week or two, or couple of weeks, is that there are some legal academics in Ontario and some licensees in Ontario who protest that this particular requirement is an infringement of the freedom of expression and conscience, and therefore are now seeking for an exception for, quote-unquote, conscientious objectors. So again, this is an important issue, as it has an impact on Aboriginal and Indigenous communities in Canada. Thirdly, and closer to home, here at Dalhousie in the last week or so, there has been a significant controversy around Ms. Mazuma Khan. And Ms. Khan, who is non-Indigenous, led the move by the Dalhousie Student Union this summer to boycott Canada's 150 celebrations on the basis of 400 years of oppression and genocide against Aboriginal peoples is not something to be celebrated. She's attacked for taking this leadership position and has scoriated by a significant number of people. In response, on her personal Facebook page, she posted a hard-hitting critique of what she described as white fragility. This led to a complaint about at least one white student that she'd breached the student code of conduct. This then led the university to institute disciplined proceedings against her, which they just dropped earlier this week. Now, while obviously Ms. Khan is not a lawyer or a law student, or at least not yet, her experience does raise profound questions about how do we all behave ethically and responsibly in the context of complex, Aboriginal-Indigenous relationships in Canada. So to take those three sort of context-setting dynamics, we've brought together a panel of four people who have worked on and thought about these issues very carefully. We have three panelists and one commentator. So our first panelist is Jeff Bickard, QC. He's the Assistant Deputy Attorney General of the General Litigation Branch. This basically means that he oversees all civil litigation involving the federal government and manages the Department's six regional offices. Now, Jeff sort of got to that elevated position after having spent 16 years working in the Northwest Territories, first as a prosecutor traveling with the courts to over 60 communities in the Northwest Territories in Nunavut, and then as Deputy Minister of Justice of the Northwest Territories from 1987 to 1994. More recently, he has worked on community justice issues involving Indigenous communities across Canada under Canada's Aboriginal justice strategy. He's also worked with fisheries and oceans as their senior legal advisor, where Aboriginal fisheries issues were an important part of the work, and we know how important that is in Nova Scotia in particular. Our second presenter is Jeffrey Hewitt. Jeffrey is a professor at the University of Windsor in the Faculty of Law. Jeffrey is from a Cree background, and his research interests include Indigenous legal orders and governance, constitutional administrative law, human rights and remedies, business law, and art and law. So clearly at the University of Windsor they teach many more courses than faculty members do here at Dalhousie. So we're happy to be at Dalh. Don't let the Dean know that. Hewitt is also the past President of the Indigenous Bar Association of Canada, and since 2002 served as the General Counsel to the Ramah First Nation. He also in 2011 received the Canadian General Counsel Award for Social Responsibility. Our third presenter, panelist, is Professor Naomi Matalik, who everyone in this room knows. I'll say very little about her, except that she is, of course, the Chancellor's Chair in Aboriginal Law and Policy. She is a Dalhousie law school grad. She looks like a law grad. She also clerked at the Supreme Court of Canada with Justice Michelle Basterash, who's certainly very well known in the legal ethics community for a variety of reasons, right? And as a legal scholar, she's most interested in writing about how the law can be harnessed to promote the wellbeing and self-determination of Indigenous peoples in Canada. There are three panelists, and we'll wrap up our panel discussion with some comments from Professor Pooja Parmar, and Professor Parmar is an assistant professor at the University of Victoria in BC. She has her law degree from the Panjab University in India. Then she came to Canada and did her LLM and PhD at UBC. Her current research focuses are on the legal profession in Canada and India, issues of indigeneity and human rights. She's working on four research projects, one of which is the study of lawyers who represent Indigenous peoples in British Columbia. Her most recent book is called Indigeneity and Legal Pluralism in India, Claims, Histories and Meanings, published by Cambridge University Press. So we have a great panel established for you. Each of the panelists will speak for about 20 minutes. If they don't, I will throw paper at them, and then Pooja will have seven minutes or so to wrap up. Then we'll have lots of time for questions. So thank you, everyone, and thank you to the panel. Let's do here. Can people hear me? So listen, thank you very much for coming here tonight. I naively said to Richard last night that it's going to be great because it's 4 to 6.30 on a Friday night. It'll just be the panelists, and I'll get a chance to really talk to them about these things of great importance because there won't be nobody else here. And then he gave me the bad news that somehow this is mandatory for the law students. So that sort of threw that out. And then he told me just a few minutes ago that a reporter for the Globe and Mail is here, to which I thought, well, I'm not really too worried at my stage of life about career-limiting moves, so I'll say what I have to say in any event. I wanted to start, if I could, with just a reflection on the fact that I'm working now with a government which has a very aggressive agenda, as we know in terms of rebuilding a nation-to-nation relationship with Indigenous peoples, Crown Indigenous relationships. So it may seem that my remarks are coloured by the fact of that particular government, but I hope that my remarks would straddle this government, previous governments, future governments in terms of my thinking on how government lawyers should act in relation to Indigenous issues. So that's the frame in which I'd like to talk. And then I just want to start off with, I don't know what made me think of this, but a metaphor, or two metaphors, coming from a comatik. If you know a comatik is a wooden sled, generally used among Inuit communities around the world. It's two rails and some wooden slats across the top. Once I was visiting in a remote Arctic community where there was an RCMP detachment and the sergeant there had come from a commercial crime division and he was going through a great deal of cultural shock being in the high Arctic after this work in downtown Toronto. And he found that there was an elder who, well there were actually a number of elders who would like to come to the police detachment in the middle of the afternoon and have tea. And he wasn't quite sure where the tradition came from because his predecessor had left before he arrived, but he thought it was a nice thing that the elders would come to town and see what he was doing in his action and coming and goings. And one of them who did not speak English and the police sergeant didn't speak Inuktitut was in a wheelchair and the particular community was not a great place for wheelchair accessibility and the police detachment was no better. So he asked Ottawa if he could have wood to build a ramp for the wheelchair for the elder to come in the afternoons. And they said, no, it's not any part of our standard, you know, accessibility in the Arctic, it's impossible. No, we can't afford to buy a ramp wood. So he said, okay, I need six comatix. And they said, excuse me, what? Well, I need sleds behind the skidoo. You know, we go out on patrol, they get beaten up and I need from my experience six of them. He said, well, we normally only pay for two. Well, I want six. So they sent him lumber for six comatix and he built his ramp. And then he had to ask for lumber for comatix later because he didn't have any comatix. So it strikes me that all of us, we pull our comatix through our lives and on that comatix can be an awful lot of biases and prejudices and stereotypes, built up ideas, acquired, accreted, somehow got there. And if we don't turn around from time to time and see what's on the comatix, we're going to be in a lot of trouble. It's either too heavy, it's carrying the wrong things, it's not providing things like nourishment food to get us through our journeys. So it really is important for us, I think, to look back at that comatix from time to time and check out whether it's got the right things on it to carry us through the journey of life. And I think that's so true in the crown indigenous relationship world. We can't just rely on our judgment and acquired experience and our professionalism and our education and all those things to get us there unless we do some real soul searching with the help of many others around us, we won't get there. So I mean I've had the great privilege to work with two indigenous ministers of justice, one in the Northwest Territories, and one in the Macquee, who's a lifelong friend, and more recently, Jody Wilson-Raybould from British Columbia. So one, I guess, a Coast Salish, one Satudene person, and I learned a lot from them and I continue to learn from my current minister. So some reflections on what's the job of a government lawyer in the crown indigenous relationship and in the era we're in now. And I've been a prosecutor in the past and there was a panel earlier today talking about that and I thought that was very pot provoking as well. So maybe a little bit about being a government lawyer and I've been one for a long time, I've been in private practice, I've been outside the federal government, I'm in the federal government now and it's my job to try to help like it's about a thousand lawyers and paralegals, professionals in to figure out how they should conduct themselves in litigation, particularly involving indigenous issues. I think the first thing we all have to remember and I would say to law students is that unlike in private practice the lawyer-client relationship is not entirely the same within government. We use kind of a metaphor of a lawyer-client relationship but it's sort of an undivided crown. So we're part of that same crown and we have to divide it up for purposes of practicality and say well that client is my client and I'm their lawyer and we create a lawyer-client relationship that in general involves talking directly to the client in front of you of an official within a department but we have to remember as well that this metaphor doesn't hold so well because our client is not that person or that department or that unit within a department or that agency it's the crown as a whole, the government as a whole and so we sometimes have a bit of a challenge with our clients quote-unquote when they say we want you to do X and we say yeah maybe good for you but it's not so good for the crown in a collective sense and on indigenous issues that's increasingly so where they are so cross-cutting in importance one client may say well it really would serve my interests if you make an example fight aggressively and hard to win this case because we can't afford the consequences of a loss but in terms of the crown indigenous relationship and where you're trying to get to we have to sometimes persuade or sometimes say no to other levels of authority to get to a different result so clients are I guess occasionally suspicious of who we are acting for because they want to be the person who's giving instructions they're generally paying the bills and we sometimes have to say well we can't actually always take your instructions certainly not from the person directly in front of us the other thing is that we have to be very I guess we have to work very hard on the relationship with our clients in private practice if we don't like them we can't fire them out of our office with their file and if they don't like us they can't go and get a legal agent to do the work for them because again it's only the Ministry of Justice can hire agents so we have to generally try very hard to build a trusting relationship with them so those pose some challenges which are not insurmountable but require us to think very carefully about how we go about our business a new challenge I would say that does relate to this government more so than in previous governments is that the prime minister has appointed our minister Jody Wilson-Raybould in kind of two capacities one is the Ministry of Justice and Attorney General of Canada and secondly in a broader policy capacity in relation to some indigenous issues he for instance makes her the chair of a working group of ministers to review all laws and policies affecting indigenous peoples all federal laws and policies so she brings together ministers and they have a very ambitious and aggressive schedule to look through those things and prioritize and see which are the most unfortunate or problematic and need to be reviewed in what order and make changes and so they're looking at some fundamental things and they brought in some scholars and indigenous representatives with that so I've talked about the captive relationship the other thing I'd say is that the Attorney General is a very frequent litigant before the courts and on some pretty important public policy issues it's true that we're also in court on fender benders and things like that from time to time but generally speaking the cases that I pay attention to and that you would care about or see in the news are the big public policy issues where there's either a public interest or an advocacy group that is trying to get a change in the law or a change in government policy and they're using two courts using the courts of law and justice and the courts of public opinion and the court of justice is a place a forum to add another dimension to the dispute or the desire to change public policy so it's very important for lawyers for the Attorney General to understand that they are pleading in a sense before both courts and the courts decide their role but it means that they have to be very sensitive about what they're saying and who they're saying it to because if it lands wrong they can be damaging relationships in the Crown Indigenous context relationships with Indigenous peoples that the government has a broader agenda to try to repair and replace with something better and they could be damaging relationships or respect for public institutions that could survive in terms of the lack of government or one period of time so I would say it's a heavy burden I wouldn't characterize it as heavier than the burden that all lawyers face when they're acting for clients the duty of utmost good faith is there everywhere I'll leave to others to say whether there's a higher level of duty or a different duty for Crown lawyers but it certainly looks a bit different to me we often clients in the context we're talking about today Indigenous issues try to find a way to tell them what they need to know rather than what they want to hear and again that if you have a good strong trusting relationship you can do that with them but it's not always easy if you come from a point where they're trying to get to point A and you're saying that really that's what you think you need to get to but it's really point B that is important here in a broader context it's generally true for all lawyers when you're dealing with clients whether sophisticated or not you have to help them with what they need to know and what service they need from you and not necessarily just what they ask for or think they need both in the criminal law context which is managed through an independent prosecution service but in the civil litigation context which I know there is an enormous power imbalance between the Crown and the lawyers for the criminal and most litigants before the court I can give examples in where it doesn't appear to be that case I mean I was talking to Alice Woolli about a tax case in which the justice contingent is four or five lawyers the lawyers for the multi-billion dollar group that doesn't want to pay the tax is about 35 or 36 lawyers so it doesn't look like a power imbalance in favor of the Crown enormous power imbalance and certainly in the Crown Indigenous relationship so you have to be very careful when you are acting in that context and how you communicate with opposing counsel and how you communicate through them to their clients particularly again with the overarching desire to rebuild a relationship I think it's not uncommon for lawyers who are dealing with a lawyer on the other side of a case to get annoyed with that lawyer and want to react in a way that gets back at that lawyer but it's extremely unproductive and I'd say dangerous if we forget who we are dealing with in the broader context in the Crown Indigenous relationship we often have clients who say to us you know just give us our legal advice instead of our policy that's our business and sometimes we try to do that sometimes we try to give them policy advice and sometimes we tell them they have to hear it from us now I was a lawyer, I was the head of legal services for fisheries and oceans and Coast Guard for a few years and lawyers who are heads of LSU's legal services units so all the federal departments and agencies have justice lawyers and teams of lawyers the deputy minister for that department and there were two of them that I worked for they made it very clear that as their lawyer I did more and I just provide them solid legal advice and risk advice and legal risk advice I was to be a full member of their executive and to be part of the same peer review and critical challenge function that all assistant deputy ministers in that department were they wanted me to give as good as I got so if I was giving them a legal advice I'd say this is legal advice, this is what the jurisprudence says, this is your statute these are the risks if you try to take that course of action and now I want to give you some other advice I don't know if there's some way to go you might be able to win that case or do that thing or avoid that liability but man oh man what are you thinking what are you trying to do here and they accepted, respected and encouraged that and as did the ministers that I worked for with fisheries and oceans so that's an important role that we can play particularly if you have supportive deputy ministers but not all on the that way I know some of my colleagues who have been heads of legal services just give me the legal advice and leave alone our policy that's none of your business but in the world we're in now particularly before the courts and if we get to the supreme court of Canada as we often do I tell our litigators remember this is not just a court of law so don't be trying to create the best legal, logical persuasive argument on the law it's a court of justice but more importantly it's a policy court that's the place where the law gets changed more often than anywhere else they are the definitive decider of change in the law so in the crown indigenous litigation that we've looked at we are very confident with our feet planted firmly looking into the past to say where the law has come to so when our clients say what's the jurisprudence say on this aboriginal issue is there an obligation a liability are we at risk here we can say very confidently well if I were just looking into the past as confidently as I can no you're not at risk but if I turn around and look into the future and if I think of what the courts have been doing over the last number of decades I'm not so confident at all so you should think long and hard about whether you want to take this issue to courts this matter of broad public policy this matter of nation building that often is do you really want the courts to decide these things you can if you think that's the best approach but man oh man you got to think long and hard about whether that's what you want and the courts have often said to us to the crown and to council for indigenous organizations many of these things are best resolved through negotiation conciliation talking it through not through courts so the courts will sometimes whack each of us if they think we're being too obstreperous or too stubborn in our views and so it's something that we tell clients all the time our risk advice is good in settled areas of the law it's not so good in areas that are dynamic and constantly changing the other thing is that section 35 of the constitution 1982 completely threw us into a different realm often lawyers that I've tried to work with over the years or guide or give direction to when I start talking about some of these public policy issues that are at play here they say well that's politics I want to deal with the law well you can't make that easy dismissive suggestion that these are politics or political issues they're not Supreme Court of Canada in what did it do with section 35 it invented a concept it said what's section 35 about it's not some legalistic approach to rights pass fail empty box full box partially full box it said no the fundamental purpose of section 35 is to build a nation to reconcile the competing or sometimes competing aspirations dreams of indigenous peoples and non-indigenous peoples that's a pretty hard one to put into legal boxes of pass fail binary yes no and so that means we have to be good scholars of public policy good scholars of nation building quite apart from law and textbooks and jurisprudence that makes our jobs a lot harder but it also makes them a lot richer and it also gives us I think some room to say to our clients you're going to have to listen to us in terms of our policy advice or whether we think that's the right thing to do because if you don't the Supreme Court may listen and they'll say you know what you may be right on the law in the past the jurisprudence from before but we're building something new and every time we say that something can't be reconciled the court generally says yeah you're wrong so a couple of examples and Richard tell me how much time I've got here five okay just want to make sure I don't miss anything that I think is important to tell you so every so often when we will go to the court we'll say okay so the courts have found that there's a duty to consult well that can't mean in relation to existing treaties number of treaties or others because you know surely those were cede and surrender and extinguish and end and be done with it treaties and so that's no more a requirement for consultation on the part of the crown court said wrong in the Mikasu pre-case they said essentially no this isn't a divorce this is a marriage this is forever and the rules of engagement will be adjusted in terms of a duty to consult to accommodate the notion of treaties and they're all treaty peoples same thing with respect to the rights of Métis we said well the test for Aboriginal rights are clear yet it's based on a foundation of pre-contact to sovereignty and all those things can't possibly have a test like that that would work for Métis so they probably have no rights wrong they said let's adjust the test Métis are people that are confluence of the pre-contact peoples and the settler peoples and if you need to adjust the test to come up with the test for Aboriginal rights for Métis we'll do it so every time we run up against what we think is an impossibility and I'll just throw out some that are before the courts now can Aboriginal people have a title to submerged lands well I guess one answer would be no it's impossible because the submerged lands and navigable waters you have a conflict between the exclusive rights of the Aboriginal title on the one hand and the exclusive access rights of navigable waters and fishing and the rest of it so they can't possibly be reconciled I kind of think that if we got to the Supreme Court of Canada they might not agree they may say there might be some way to reconcile those things or what about Aboriginal title and fee simple title you know there's a claim to a vast territory and say they're successful in court but there are a whole bunch of fee simple owners on that land does that mean that these exclusivities the exclusive right to possession of fee simple and the exclusive right to possession of Aboriginal title are impossible to reconcile don't know better that we work it out outside the courts or we could wait for the court to tell us yet again how reconciliation works so I think it's something where we have to work out new organizing principles for how we get along together as opposed to saying these are irreconcilable so somebody has to win there has to be a winner and a loser and we want it to be this so with with section 35 and its fundamental nation building core with other outcroppings of that such as the honor of the crown and how it's engaged in all of the dealings with Indigenous peoples with the notion of fiduciaries that not every situation involves a specific duty but the crown Indigenous relationship is one based on fiduciaries that has to tell us something about how we engage with Indigenous peoples Indigenous nations whether we think there's a specific duty in the case or not so I would say that we have to think about not only our own biases and stereotypes and biases or past knowledge built up over time about what the law allows for doesn't allow for we also have to make room for the kind of nation building obligations that come out of section 35 so if nothing else it tells me that government lawyers who are engaged in these issues have to have strong dialogues with their clients about how you get through this how you don't get too certain about what the legal risk is or who's going to be the winner or loser or who should be the winner or loser in a particular conflict so I mean I'd just say in ending it there are a number of ways that we can go about this and I think the way our minister would like to go about some of it is to start with the principles that she and the Prime Minister issued last July the ten principles on a kind of a re-engagement with Indigenous peoples and how the Crown should deal with them she wants to deal with that in a litigation context as well because it's often been said to us in the last 18 months you know the government seems to be promising something new but the litigation the defenses on the part of the Crown sure look an awful lot like the traditional one so you're going to do nothing new and different we've made some headway and progress but we're not done by any long stretch and I think stay tuned but I think our minister will give us some clearer direction about conducting litigation in this Crown Indigenous relationship and some of our clients in the sense of quote-unquote might not like it but we hope that the Crown in a broader sense will so that's all I wanted to say so thank you I'm very happy to be here and I introduce myself in MIGMA and I am a proud member of the MIGMA Nation and most of you are students who are here but for our guests who are traveling I welcome you to MIGMA territory I'm originally from Giske Bay Wagi which in MIGMA means the last land but we are currently in Eskiga Wagi which used to be called Chibukduk which meant Great Harbour but it was changed by the MIGMA around the time of the fur trade to mean Eskiga Wagi which means skin dresser place just a little history about where we are so this is sort of a two-parter Jeff and I have sort of divided this so if there's stuff that I missed so I'm going to talk about a topic that has preoccupied me since I was a law student so in third year when I took Aboriginal peoples and some of you are taking it or have taken it from me the paper that I wrote about was about Crown Litigation Conduct and whether there was a duty on the Crown based on the honour of the Crown to litigate in good faith a particular conduct that was imposed because of that concept and I wrote that because in second year I clerked out a firm Virgil's and got to tag along to some Provincial Court Aboriginal Rights cases and there was certainly some conduct that raised my eyebrows so it is something that interests me quite a bit and I see the kind of conduct that we are talking about here as sort of broadly falling into two categories so one I would say procedural tactics so relying on procedural rules judicial review rules to attempt to avoid hearing cases on their merits right and you know we're all learning civil procedure and this is something that you know we study and certainly in practicing law and firms it you know we certainly come to those types of procedural tactics I would say there is also substantive tactics so these would be arguments with respect to Aboriginal peoples that are either based on misstatements of the law stereotypical portrayals of Aboriginal people or otherwise arguments that could be considered offensive to either the dignity the culture or the history or the right to self-determination of Indigenous people so yeah so I looked at this paper after Haida had come out and tried to see if there was an argument based on honour or the crown as the court had defined it at Haida anyway so it was fine paper I thought but it was actually the question was answered in a case the following year at the federal court of appeal by Justice Rosteen as he then was in a case called Stony Band so there a lower court judge had questioned the honourableness of crown conduct because the crown had made an argument unfairly relying on delay when it hadn't done anything to sort of move the case along in fact it hadn't filed a defence and it kind of gave the Aboriginal claim at the perception that you know they didn't have an issue of time but then when the claimant then tried to move the claim along they brought a claim based on procedural fairness and delay and prejudice and these sorts of things so the argument was made and Judge Rosteen said that there was no such duty embedded within the concept of honour or the crown or fiduciary duty and that in fact he had considerable difficulty with such a concept he didn't think that they supported any form of higher conduct and his main rationale was that well the Supreme Court of Canada recognises the imposition of lashes and limitation defences in Aboriginal rights cases so procedural arguments are just fair game and he put a lot of faith into the adversarial system and that will the fact that people can approach the adversarial system would be the cure to any sort of defect in the system and essentially finding that to impose such a duty on the crown would compromise the crown in advancing or defending its position so crown conduct so that argument has been gone for a little bit but since I've started litigating and now as a law professor it's an issue that really still continues to concern me in my own cases for the 10 years that I was primarily practicing I saw a number of arguments and I practiced in the heyday of the Harper regime and it certainly was a busy time for my firm in terms of I think we did have a number of cases against the federal government and some of the arguments that I saw there was arguments one I recall it was an important claim and the government advanced procedural argument about mootness that the claim was no longer didn't have to be heard we were bringing a judicial review to an important decision regarding social assistance on reserve and the crown argued that because one of the bans involved has signed an agreement and these are funding agreements that are standard form agreements that the bans have no choice over and they need this funding in order to provide essential services there had been some fine print that had been added to the most recent version of the funding agreement and it was argued that the fine print in the most recent version in fact precluded the ban from making an argument but they hadn't actually really consented to or even had that drawn to their attention so that argument wasn't accepted but to me the argument that again tries to get the claim out before actually hearing on its merits I've also had situations where there was the same case later on where a key document was not disclosed until after the case was heard and there has been more recent examples as well of some cases where there's been issues around disclosure of documents in one case that I had which was about implementation of the 1999 Supreme Court of Canada Marshall decision it was about the crown's failure to fully implement it and in arguing the case and this kind of goes again an example of a substantive sort of concerning argument the crown arguing the case suggested that Marshall was just about the man Donald Marshall Junior and did not have any larger impact beyond the man and didn't have a larger impact to MIGMA in Nova Scotia which MIGMA people who were in the audience and that to be a bit offensive and there's more and it's not just relating to the federal crown there was last year's infamous case where it was argued by the government of Nova Scotia that it owed no duty to consult with the MIGMA of Sybaga and Egady because they were a cool conquered people I had another case in New Brunswick last year where it was argued that the MIGMA were not a nation because they had a decentralized form of government and lacked a super chief and I just got the decision today and the super chief won so I'm not very happy a meaning that the government did accept that MIGMA were not a nation in that sense because they lacked a centralized form of government that resembled something more of a Euro-Canadian variety anyway I'm still processing that one and I'm not here just to tell a bunch of war stories I do want to talk about the development of the Trudeau government's new approach to litigation what they've actually called respectful litigation with aboriginal people and Jeff spoke about it a little bit I'm here to say I think it is a positive development and so I pulled some of these figures off some government websites last night but it shows that funding by the department of indigenous and northern affairs is legal cost from 2007 to last year 2016 and so we do see that there has been you know I would say this sort of Harper Hay Day that I was referring to where their work was quite a bit of litigation ongoing we can see in the more recent years that that is has been decreasing so it is clear that the government is litigating less of development but I will add a few more points as well so I remember because I quoted this in a paper in 2013-2014 so it would be this date the amount that INAC has spent in litigation costs in fact doubled, dwarfed by twice the amount the next runner up in terms of government departments who spend a lot on litigation which is CRA a revenue agency whose mandate is to sue people who do not pay their taxes and also the thing to point out is INAC is the largest vendor on legal cost of all government departments with the government of Canada so that is certainly something to keep in mind so we've got the litigation of this year the amount for last year 66 million so it is down and that is I think reason to celebrate however there are continuing issues part of it is perhaps maybe a bit of proportionality some of you might remember the case that came out or the news release a couple weeks ago about a case where a young lady is fighting for its pre-age judicial review in terms of access to services braces of a young First Nations lady and the braces that she is seeking to have covered by the non-insured health benefits that cost $6,000 and it came out in the news that Canada has spent $110,000 litigating that case there is a question of proportionality I think there has also been some other issues I do like I say applaud the approach but there are some issues so one of the things that Canada mentions on its website about this approach that it is now taking is that it has decided not to appeal or continue judicially reviewing certain cases which I think is a positive element however what we've also seen it as in a few instances that may be perhaps there are issues around whether Canada is actually even though it's not appealing the decision actually complying with the decision so my first example of this is the First Nations child and family caring society case which was about the underfunding of child welfare services in First Nations communities so this case was primarily argued under the Harper administration and ultimately the government was unsuccessful and was found to be discriminating and knowingly underfunding child welfare services and a quote that I will pull from it is that the tribunal said that overall it found that INACs are Indigenous Affairs position to be unreasonable unconvincing and not supported by the preponderance of evidence and that case was nine years it was nine years at the tribunal there were various attempts to strike it out on procedural grounds before it actually got to the hearing on the merits and the government spent $5.3 million in legal fees up to that decision in 2016 so Canada did not appeal and I think a lot of people were quite pleased with that and the expectation was that Canada would then go on and address the order of the ruling and to explain that a little bit it's a very complex case and the tribunal maintains supervisory jurisdiction to address long-term issues with the parties however it did order some immediate remedies which were one that Canada sees as discriminatory practices and stop underfunding these services and also it ordered that Canada must see supplying a narrow interpretation of Jordan's principle and implement a full meaning of Jordan's principle so since January 2016 so we're now almost to a two-year anniversary of the decision there have been numerous times that the parties have gone to go back to the tribunal the parties the AFN, Cindy Blackstock and various intervening parties have been back three times on non-compliance seeking an order that the government is not complying with what the tribunal had ordered and so there is this dispute and it continues to be an issue and so we have this is from the very last order which was April 2017 the tribunal says it's now been over a year since the decision and these proceedings have yet to advance past the provision of immediate relief the complainants, the commission and the interested parties want to see meaningful change for these children and families and want to ensure Canada is implementing that change at the first reasonable occasion the panel shares their desire for meaningful and expeditious change and so yet there is still this debate happening and continuing and clearly the panel itself is expressing frustration here as much as the parties about the slowness of implementation of that decision another case where the government decided not to appeal is a decision called Deschanaux which was another challenge to the ongoing gender discrimination in the Indian status provisions in the Indian Act it was another section 15 case there had been previous decisions in the past and Canada's approach to dealing with these cases there was a previous case called McIver was in the case of McIver and some previous cases to go and fix the particular type of discrimination that was found in the case in the particular case but then not necessarily addressed continuing and other forms of discrimination including further gender discrimination and the provisions so in this case the Tribunal actually commented on that and suggested that in fact in saying in this quote in very overt terms it's encouraging Canada not just to do the bare minimum in addressing its decisions but to actually address the full extent of gender discrimination and since Canada has decided not to appeal this there has been this continuing issue where there was draft legislation that was proposed by Canada the Senate and other interveners on behalf of Indigenous groups complained that again it was just again doing the bare minimum and not fixing the broader discrimination and at this point there seems to be a little bit of an impasse of comments and Senate on this and we'll see where that goes a few more examples I'd like to give so in a recent case about the 1850 Robinson-Heron Treaty this case is still before the courts but it's a case about a historic treaty and Ontario's failure to pay annuities under it and it's been raised by the complainants or the plaintiffs in that case that Canada it has been acting in a way that is inconsistent with the values that the current government is espousing to so for example Canada is leading evidence in this case by an expert called Professor von Garnett there are arguments being made about Indigenous perspectives and Aboriginal law and Dr. von Garnett was quoted by the complainants in a public statement this is from his evidence Dr. Stark's description of Anishinaabe law, jurisprudence, legal principles and philosophies is very interesting but it is a large part of construction of late 20th century and early 21st century academics who have generated a burgeoning literature that is as sophisticated in its discourse as it is disconnected from everyday practical realities even if it is partly derived from the wisdom of elders and their oral traditions uncritically projecting such a modern academic construct back in time for the purpose of illuminating what motivated the actions of past peoples or reconstructions what they would or might have thought or expected is problematic for it must carry an assumption of continuity that needs to be balanced against the evidence for change and so the Crown is putting forth this expert that is very much clearly being dismissive of Indigenous laws and Indigenous perspectives that are being made today about events that happened in the past similar arguments being made in the case challenging the Treaty of Niagara of 1764 calling it a so-called treaty and also there are arguments being made in that case or expert evidence as being put forward that the royal proclamation of 1763 has no legal effect so this I think is probably one of the more problematic examples that I can point to in that the TRC report talks about the importance and the fundamental nature of the royal proclamation of 1763 in the Treaty of Niagara and the importance of recognizing Indigenous law and yet we see these cases where the arguments that are being put forward are challenging directly against that so I got a couple minutes to go two minutes so I'm going to skip my further examples but there are further examples and to actually go to what kind of things can be done I do think that as I say this new approach is good but it's not enough because there's lots of arguments that are still being made and I think that UNDRIP provides some suggestions that we haven't really talked about I haven't heard anybody talk about these we were talking about 27 and 28 let me talk about a few more that I think we need to ask the government what are they doing on it so TRC called the Action 26 calls on governments to actually stop relying on limitations defenses to defend their legal actions of any historic historical abuse brought by Aboriginal people and I've read the TRC report I don't think they're just talking about claims of residential school abuses I think it goes further than that they also call on the government to repudiate concepts used to justify European sovereignty over Indigenous people and lands of discovery and terra nullius and to reform their litigation strategies based on that so we haven't heard that and I think that the example that I gave previously about the treaty annuities case those arguments essentially being extremely dismissive of Indigenous laws are very much in keeping with arguments that are close to the doctrine of discovery so that could be something that could be changed the TRC report also calls on the government to repudiate we've covered that one got that limitation litigation strategy also calls on the government of Canada to develop a policy of transparency by publishing its legal opinions on Aboriginal and treaty rights cases I think this would be a really significant and helpful thing to help improve the relationship with the future finally also the government of Canada has embraced the UN declaration and the UN declaration among many other principles talks about the right to access to a prompt decision making through adjust and fair procedures for the resolution of conflicts and disputes with the state so I think that these are all principles that can enhance the approach that the current government has committed to to discuss otherwise I have fears that this is a lot of words and simply a thin veneer to a very colonial process that continues so thank you very much okay he wants all my stuff two things to start first is a thank you to the organizers for bringing all of us together and my panelists here for sharing what they have and the second is a land acknowledgement as a Korean man I'm grateful to be in Mi'kmaq territory because as I travel with my family and as I travel on my own and I'm outside of Korean territory there are protocols where we are required to not only enter in but to also acknowledge and why do we do land acknowledgement there's a number of reasons institutions do them and there are different reasons why we do them as individuals where we are acknowledging not only the land that we are on but also our relationship to it as the dean and I want to thank you for your acknowledgement at the beginning it was a statement of fact of where we are whose land we are on I would add to that as a guest and visitor how grateful I am to the Mi'kmaq that remind us what it means to share share lands but also share resources and ideas so thank you for that greeting earlier I am reformulating my thoughts now because of what both of my colleagues here have had to see I want to talk a little bit about ethics macro we've seen some examples that Professor Metallic and I hope you know how lucky you are to have her here that she has shared some of those specific examples in law of what we are seeing some of what Jeff has talked about from the relationship perspective ask us to go just a little bit to a different location maybe a few feet up as we think about our relationships and what we are doing some of you in this room are beginning your journey in law you will all have had an idea of what law is or you wouldn't have applied to law school wanting to pursue this because we don't make the application process easy for you I wonder how many of you have had your ideas of what law is change since you have arrived so I am going to ask you to think about that inside as I talk to you about other ideas of law often when I am teaching first year constitutional one of the first questions that comes up because in my classroom we spend about five weeks the first five weeks listening to stories I bring in a drum I bring in wampum bells and we talk about those as sources of law inevitably the question comes but why didn't you write things down I ask that question to be held until we come to or maybe some of you are right now division of powers and I say that because by the time we start diving into Canadian jurisprudence inevitably the first class week six that we do this I don't understand what the court has done here my response to that is straight forward why not it was written down and when we write law down particularly in English we have decided that this is law this is the form that law must take because it is a superior form of law but if that were true then why do we need to generate an entire justice system where every single actor involved is required to do what interpret exactly those words that we just wrote down because none of us agree on that meaning writing law down means law has been written down writing law down in English means we wrote law down in English full stop it doesn't mean it is a better form it means it is a form and it is a source of law you were looking on the screen at Norval Moriso's sixth panel of six of a man transforming into Copper Thunderbird which was his spirit name Norval Moriso is one of this country's greatest artists the original hangs in a series of six along a wall at the Art Gallery of Ontario the first begins with a portrait of the artist himself and each panel sees him transform into Thunderbird that you see here I had chosen Thunderbird for a reason today Dan Amiki yesterday when I was flying in I was above Halifax a lot longer than it actually took to get down into Halifax because there was rain and there was wind and the pilot was very congenial in saying sorry about the weather folks we just have to circle around again and it struck me in the moment where I could have been inconvenienced about what Anamiki does for us and that this is their time and that that thunder and that wind is here for a reason now in the spring they arrive they bring with them the thunder and the flashes of lightning from their eyes but in this season as we move into that freezing moon that is beginning to rise now they're leaving they're gathering the clouds to them and they are lifting themselves back up into the sky where they'll rest for the winter before they join us again next spring we need to think about the ways that we relate to the world and the law around us and the places that we might find it it isn't always in what is written when we seek to reduce relationships to writing to those protocols to rules that we wrote down the moment we do this we are capturing something that needs to be interpreted argued disagreed about and somehow we have come to the conclusion that by testing that by arguing with each other we're going to get the best of what we needed to write down I think Professor Metallic is one of those cases where we're not getting the best if humanity is what it is best if it is about an exertion of authority and power we're hitting that mark I'm now going to begin with my slides for some I could put myself at the end that I did so this would not be the first time I have done this this graphic comes to us from Christy Bellcourt who is a Métis artist standing rock about pipelines remember that just because it's not in the news today doesn't mean that there's not still trouble happening what we are seeing here is another version of Thunderbird and the connection of women to that water to the source of life for Crete people we talk about in our laws the role of wind who are born with all the knowledge they need they are born this way for two reasons one they can make water two they birth spirit men are born with about half of what we need and it is our job to demonstrate humility in a way that requires us to learn and listen from those women who teach us here we see the relationship to life and water but I also want to come back to what you might see there and how Christy Bellcourt has portrayed these intricate relationships with women water and Thunderbird I'm going somewhere with this for the scientists in the room please don't come at me I'm going to talk about scientific theory for a minute even though I am not one but I like to liberate your ideas every once in a while this is parallax theory and essentially what it means is this if we are all at an intersection just over here this half of the room is going to be on the northeast corner this half of the room on the southwest corner we are all going to see a red car and a blue car collide in the middle when we go to court this half of the room is going to say the blue car hit the red car this half will say the red car hit the blue car you are going to say the opposite of each other you are going to say that and you are going to all be true you will all be speaking the truth as you see it as you observe it because parallax theory holds the idea that your position matters to understand the world around you in Cree Law when we talk about truth that non-objective that we pretend is objective idea we talk about how truth is only as far as our words can cast only as far as I know when Cree elders appear on stands and they are told tell the whole truth they will all inevitably say I can't do that I can tell you what I know I can tell you what I saw but I don't know what the whole truth is and so from the beginning it is our structure that begins to create trouble for us our relationships are not just political they are by ours I mean the crown as people they are not just legal they are but law has a very active role in having shaped and maintained that relationship we can talk about nice things we can talk in good words but until we are prepared to talk about the hard stuff witness what happened at this university early this week when the word white racism we need to learn in law to be brave and talk about the things others don't want to talk about and there's lots of ways that we need to do that first off we need to realize that it's actually worse to be a racist than to be called one but we are primarily concerned about being called one less concerned about our actual behavior so one of the ways maybe to counter this is that we can all just say racist let's all take the label and now let's talk about what the behavior behind it actually means by taking the name out of the way next thing we need to talk about is guilt when indigenous people are speaking often times we are diminished by saying but you're making me feel guilty sorry about your luck on that one I don't want guilt here's why it's an analysis it stops discussion it stops listening and it prevents us from change it does this and we build it in and we're okay with that because we can wrap ourselves up and justify behavior when we're saying we're feeling guilty about something let that part go if there's anything that we can accomplish tonight let's just stop feeling guilty about stuff and start thinking about how we're going to change that guilt into action because it's only our actual words and our conduct that are going to change things talking about how crappy we feel because somebody called us a name isn't changing anything and I say this because some of us in this room have had centuries of being called all kinds of names savage happened in a classroom with one of my students half-breed stops that's being sent around the room while I'm standing at the front teaching it won't prevent me from lecturing it doesn't prevent me from coming and standing in front of you saying we need to get over our racism and the name and we need to start talking about our conduct until we're prepared to have those discussions and if the people in this room who are being legally trained and our lawyers can't do that we can't expect the rest of this country to do that either expecting indigenous people to do all that heavy lifting to make us feel better and not guilty anymore that is not on indigenous people that is on all of us to figure out for ourselves depends on where you sit this is a bentwood box this bentwood box sits at the Canadian Human Rights Museum in Winnipeg it was commissioned and crafted specifically for the Canadian for the truth and reconciliation commission the way bentwood box is made also teaches us something about how we need to think about relationships conceptually the artist will choose a tree after going out and fasting in the forest so there is contemplation involved there is an observation there is a recognition of agency of trees inevitably one will be chosen tree will be fell and reduced into a plank a long plank the artist will have come to their relationship with the tree by this point and begin to understand where to carve some of the wood away heat is added through steam and the wood is bent and it is bent and inevitably it forms a container it is a single plank of wood we might think about generating a bentwood box for our country and our relationships and knowing the spots that we need to bend but knowing that we are all one country how do we come together to form a container that is as beautiful as this where we might place inside what we agree to how we will live together inside this one are the stories of the people who had spoken in front of that condition at the very beginning it was framed today to talk about 27 the recommendation inside of the TRC's calls to action when we are talking about this we are talking about cultural competency intercultural competency here is where we are at with that professor metallic and I some of you also in this room we have gone to your law schools we have sat beside you we have observed you we have studied your law we have gotten really good at your law we now teach it all of this time all of this time you have learned very little about us while we sat with you while we observed you while we studied your ways this is a commitment now on your part do what we have done if we want to make this work you are going to have to sit with us listen to us talk to us observe us and learn our ways that is going to take some time it is also not going to come we have controlled room from September to April for three years and out we go with a certificate that tells us we can do something it is a lifetime of obligation I have spent a long time on this and I know so little but it is a requirement something comes on the practice of that competency that is not resulted from just one engagement one course it is going to be with professor metallic it will be just your beginnings United Nations declaration on the rights of indigenous people is another source that tells us we need to think these things through I know that Jeffrey had talked to you about section 35 I have a different view I would like to say to you I am over section 35 sort of I am but I am still angry so not really now the court talks about section 35 being a reconciliation section the way that we start to read the cases tells us that what is being reconciled is indigenous people underneath crown sovereignty not one decision not one case does our court interrogate the assumption of crown sovereignty and title not one time it is however assumed over and over to the point where we don't need to use section 35 to examine that anymore 1986 the oaks case comes to us and the court is astounded that there could be the narcotics act that would presume guilt if you are in possession of narcotics of a certain amount even if they were prescribed as they were for oaks because the court says fundamentally there is a presumption of innocence and this offends our way our values to have this assumption a reverse onus to prove innocence with assumed guilt they reject that we still teach and study and use this four years later in sparrow the very first chance Supreme court gets to interpret what the meaning of section 35 is what did they do without any limiting language as there is in section 1 section 35 1 aboriginal treaty rights are hereby recognized and affirmed full stop the court created a reverse onus test where the aboriginal claimant must come forward and prove there is an existing aboriginal right we then move back to the crown who gets to say but we extinguish that did ya then we go to number 3 where it's back to the aboriginal claimant to say well it wasn't extinguish but it's being infringed and here's the way that it's being infringed on our practices back to the crown who gets the last word well but we meant to infringe it and we had to because of you know title sovereignty need we say more and the answer is no you don't need to say more because the court is not going to inquire into that so we need to think through how we began to structure section 35 what we meant by that course jurisprudence and how it continues to shake out these are the reasons why I'm over that if we want to talk about a relationship we have to do that outside of section 35 and that section itself needs to be reframed by the court to be the section that reconciles the crown's assertion and this country's continued assertion of title and sovereignty my people did not give that up we didn't sign that away those treaties they are not about surrender in Krila we have a way that we are not allowed to have relationships with anybody no engagement unless you are family so when strangers came we couldn't do anything until we found a way to make you family we did that by way of treaties so while we say these are about you becoming family the crown says about surrender of all the lands and resources because that seems like a good idea we continue to uphold this narrative we don't criticize and critique it enough and we don't challenge it enough I'm going to move through a few things here the Law Society of Upper Canada sorry the Law Society of Question the Advocate Society and the Indigenous Bar Association have come together to work on something that's known in early draft stages as the true North Guide and this is really about assisting lawyers on how they're going to deal with Indigenous people part of what we have in there is cultural competency it's about understanding intergenerational trauma look at that possibly be here's a quick I'll get to that in just a second in terms of an example of what that might look like here's our bigger problem we have an adversarial system we teach it we say we thrive on that here's an example of how we might adopt that adversarial system by reflecting outside looking in let's say Professor Metallic and I are both cardiac surgeons not professors of law I will go into an operating room like a courtroom that is built especially for that purpose operation I will have a trained team of specialists with me to help ensure that operation succeeds there will be tools specially designed just for that cardiac surgery and if healthcare was adversarial the way law is Dr. Metallic's role would be to stand on the other side of the operating table and actively undo everything I am trying to do to save the patient and somehow we would say that makes for the best operational outcome because it was tested it was tested in an adversarial arena how is it we have decided that the adversarial system is working in law because if you are on the indigenous side of that the one on the operating table with your heart open it is really tough to be part of a system that says this is going to draw the best outcome here is what it does come up with it means that when you go to residential school you had a better chance of dying than when you signed up voluntarily to go to World War II it means that everything that has been done to indigenous people has in fact been legal in this country the law has allowed this and as legal actors we have allowed this i.e. it is our responsibility it isn't about somebody or someone else think about the ethics of that it means indigenous women go away and we don't know where they are it means this it is no weight take a look her hair is pinned her skirt is long she is appropriately demured and wearing just enough of a heel to make it look good without being too difficult to walk in them all day so she is clever she has no clothes her hair is down it is drawn in one piece her body is shaped in a way it is to lead us to the hyper sexualization of Pocahontas we feed this to our children over and over and over again and we are not done halloween is coming up this week how many are interested in dressing up we are honest for halloween apparently there are enough Canadians that this is all over stores where we are actively participating in the hyper sexualization of indigenous women at the same time we are talking about how terrible this is that indigenous women keep getting murdered and going missing in this country happy halloween when we place them together we can see how we are supposed to treat snow white because when she goes missing she is held accountable we read stories about her and her family about how much she has missed when we have Pocahontas go missing it is her mouth shot she was a sex worker an addict there are no interviews with family she has them they are missing her too they have memories of her but we consume this every single day what are we doing about snow white and Pocahontas in the end they are both women in the end we need to think about how we can see law as a construction that has so deeply damaged the relationship between crown, Canadians and indigenous people that we are okay with Pocahontas going away we are okay with hyper sexualizing her and feeding that to our children and then wondering why when young men grow up they can be violent toward indigenous women because we have already taught them they are bodies for gratification our adversarial system is the problem if we think about indigenous sources of law and we begin to expand our ideas of what we mean by ethics we start to see connection connection to women as power women who make water who are responsible for the spirits that live in the water of which we are all made from we might think about what we would place in our box because right now, not so great we've got work to do but we have to get over ourselves to do that our system depends on where you stand on what you get to see that how we are going to draw those outcomes but in the end if we do well those thunderbirds will come again to us next spring they will bring that boom of thunder and those strikes of lightning and the rain that we need to survive they will leave us again next fall make it difficult for my flight to land but when we are thinking about the profession we need to think macro what is the responsibility of our profession our ethics usually start about what will defense and crown council do and how should we expect them to conduct themselves and those discussions are also important when we are talking about ethics of the relationship with indigenous people we need to think about the relationships and the ethics of indigenous people and our sources of love and they are not the same thing because we do not have an adversarial system with that I say hi hi thank you for listening and thank you for having me thank each of the presenters for the very rich presentations my task is also to summarize and perhaps draw some threads and I'm not sure how I could take these very rich and powerful presentations and try and say something about it in five minutes so I should perhaps not attempt to do that other than say thank you I do have but I do have lots of questions so perhaps I could I could pose some of those and these are not just for the presenters but for all of us to think about because when Richard first asked me to be on this panel my first reaction was I'll be a complete outsider because I have no experience in practicing either Aboriginal or Indigenous law but as a professor tasked with educating with training lawyers for the future it's something I think about quite a lot especially in terms of ways of responding and taking seriously the Truth and Reconciliation Commission's report and its calls to action and what has helped me think about some of these things is in fact many of my colleagues at UVic Law where several conversations are ongoing on this just as here at the Shulik Law School in particular the work that's being done by the Indigenous Law Research Unit at UVic Professor Val Napoleon Professor John Burroughs I've also mentioned Professor Rebecca Johnson and her work on sort of TRC and law school pedagogy and I've had an opportunity to learn from them and so some of my comments come emerge from what I've understood all of this work to be so I think one of the things that's really clear from each of our presenters what they've shared with us is that there is an emerging consensus that business as usual is not acceptable anymore whether it's on the part of the government or practitioners and each of the speakers each of you has indicated in your own unique and powerful ways that we need to rethink and we need to think carefully about specific ways of that quote so it can't be business as usual but that needs sort of specific attention to specific tasks that are before us as practitioners as students as teachers and so one of the things that I mean I have to say I was very heartened to see the framing of the title of this panel I think some profession is the practice of Aboriginal and Indigenous law and I'm reading Indigenous law here to mean Indigenous and Indigenous law something that emerged quite clearly from Jeff's talk and so because I think that is a radical move in its own sense given that there are still so last year at a conference in the United States I was presenting some of my research and one of the questions from the audience was well how do we know what Indigenous law is so that was my opportunity to talk about Indigenous scholars here and elsewhere but so I think framing that right of way kind of signals to us that there's more to what we need to engage with than simply sort of Aboriginal what's referred to as Aboriginal law or Aboriginal Crown relationships and so in that spirit what I would like to hear from you is sort of how do you think that sort of Indigenous laws Indigenous epistemologies can help us rethink professional codes for example in terms of sort of what is a lawyer's responsibility one of the guest speakers an Indigenous lawyer that I've invited to my ethics class to speak a couple of times now one of the things he raised was one of the things you want to think about when you're thinking about representing Indigenous clients is sort of who is my client counsel is it the community as a whole who do I owe my responsibilities to right so those kinds of questions which the code certainly don't offer clear guidance on or help us think about those things in ways that I think what we're talking about today requires us to do so how do we you know what in what ways can we rethink the codes and responsibilities included in there if we take Indigenous laws seriously right another thing that that I want to think about us to think about if we take reconciliation seriously is sort of and this is something Professor John Burroughs in his work both in his work in the past and one of his forthcoming work talks about sort of Indigenous legal practitioners people who have been practicing Indigenous laws whether it's Cree law, Nishinaabe law or Mcma law for centuries right and so if we are going to take Indigenous laws seriously and the practices of those practitioners seriously to what extent do you see those as a resource for enriching legal education for everyone right do we have the resources and tools for example resolving conflicts that may arise between rules of professional conduct promulgated by law societies on one hand and what a particular Indigenous legal tradition might ask or expect of a legal practitioner do we have the necessary resources and tools to think about those kinds of issues is something I think we need to give some more thought to another thing to think about and I'm putting all these questions out there because I don't have the answers in what ways do or can Indigenous laws in fact strengthen the practice of non-Indigenous law right so common law and civil law in what ways can we what can be drawn in order to strengthen ways of being better practitioners of common law and civil law and I wonder if my five minutes are over but I'll just take maybe another minute to pick up on something that Jeff you mentioned about intercultural competency yes there's clearly the calls to action 27 and 28 ask us to train lawyers in ways that make them more culturally competent but sneak peek to sort of what I'm presenting on tomorrow is that I'm a little bit troubled by the focus or the rush to embrace intercultural competency without having a clear sense of what that means particularly when when culture or culture becomes a way of not saying the word culture becomes a way out of saying other words for example racism or colonialism it's easier to talk about intercultural competency but as Jeff also rightly mentioned it's really hard to talk about racism it's really hard to talk about colonialism those are words that make us more uncomfortable so I'm wondering if the sort of embrace of intercultural competency says something about the things that were also uncomfortable to talk about so I think I'll end there and I'll invite you to respond and I'll be opening it up too thanks so those were easy questions thanks I'm going to deal with them out of order so yes intercultural competency is the nice way it's also like saying reconciliation is a nice way of saying we really oppress people for a long time let's reconcile right let's not talk about oppression let's not talk about law's role in violence we're committing violence instead let's just leave that conversation we all know nudge nudge wink wink and let's now talk about reconciliation in Cree there is no word for reconciliation so this whole framework with Indigenous people gets set out without actually I don't know talking to the Indigenous people whom we want to have the relationship with to say what do you need, what's going on how do we engage as opposed to commencing the conversation setting the framework and then saying fit in in the same way we're also supposed to fit in section 35 and that's interpretation so intercultural competency has relevance I think in other spaces too though there is something about it that matters it matters particularly for lawyers because lawyers have been involved in the thinking and the crafting and the enforcement law that has been used so effectively against Indigenous people but I agree with the premise that it helps us get rid of some of that bad stuff but we need to talk about that you can't be in an abusive relationship and then go to get better to continue that relationship without ever actually talking about the harm and without talking about the abuse those conversations actually that's what therapy is for and maybe we just need like a national therapy session together which could be good but it can't be like the work of TRC that subsequently, important work and it's had profound change at moving us forward but what struck me about that is how quickly the country phrased that is oh Indigenous people's history, no this is Canada's history we all own that the Indigenous people and the stories that we're watching on the news earlier today there was a panel talking about privacy and how sometimes we want to talk about mental health issues in law school and in the profession but we really don't want to talk about it because we don't want to talk about it openly the example that I might give about that is that at Windsor Faculty of Law we have a meeting we are finding out from professionals a number of students that had mental health issues that they were struggling with and we want to talk about this stuff because we need to talk about it but then when we're told but we can't tell you who the three Indigenous scholars in the room just picked up our heads and said then why are we having this conversation if you're going to tell us there's a problem but we can't tell you really what the problem is other than naming it for you and there's nothing you can do about it but we need you to fix it when it is Indigenous people in front of microphones and cameras talking about the most intimate forms of abuse we're prepared to have a national discussion on that we're going to tune in and we're going to watch that we're prepared to let Indigenous people's stories spill out but when it comes now to non-Indigenous people having a discussion about important issues around mental health in the profession well now privacy matters and we don't want to have an open discussion about that why are we prepared in this country to go through the tragic pornography of watching Indigenous people expose their hearts but we're not prepared to do that into spaces that we currently occupy law school courtrooms we need to have those conversations around mental health, right and that's part of our national therapy session because those arrive for a number of complicated reasons and part of the reasons that they sustain is because we don't want to talk about them out loud we just want to reduce them to data and so I might say that that's also part of that cultural competency that we can learn and practice it's not just with Indigenous people there's much bigger issues around their tube ways that Indigenous law can strengthen common law well, there's lots but there's also an importance about saying in this space how might Mi'kma'a law influence common law here because remember the Indigenous laws of the land that you are in were the first laws of the land that you are in and they have been practiced a lot longer than common and civil law and so there is definitely something to be drawn from them but I'm not sure if there's a strengthening of common and civil as being informed when we've created this legally pluralistic society we have space in this country to make room for Indigenous legal orders too and then let's see how they inform each other and then I don't know the first question was rethinking those professional codes of conduct you know, Cree people because there's not going to be an Indigenous pen, Indigenous response our law is structured around kinship relationships when I was talking to you earlier about making everybody family think about a code of professional conduct that doesn't start with a balancing of power and authority but starts about relationships and the expression of relationships not about duty and the assumptions of who has the power and who doesn't, right lawyers we often get taught especially in an earlier discussion on another panel today about the data where lawyers need to talk to their clients because communications are one of the biggest points of complaint that arises in front of law societies and the insurance companies there's also another part to that lawyers think we know everything we're taught you know everything think back to your first day at law school you're so special right look at you smart smart people you're so special to be here it begins that narrative right away and we sustain that narrative throughout so that by the time you sit down with your clients you think you have all the power and you think you actually know everything and that knowing prevents us from hearing because in law school we stand in the practice we're taught to listen only to the point where we can argue and critique where's the weak spot and as soon as I found it and heard it I'm done listening to you I'm just going to wait until it's my turn in Creeway we're taught to listen to understand that is a very different thing and so if we think about building our professional codes of conduct we need to think about what we want to accomplish as a profession is it about the continued understanding of power and authority or is it about recognizing how little we actually know and how little power we should have in that relationship but it's a reframing of the profession that the codes need to reflect I think that's what I'm trying to say okay now we're done goodnight over to these guys to give much better answers now okay alright I'm going to be pretty honest and a bit personal about I'll I I find amazing the work that's happening you know Hadley Freeland and at your institution but and I think it is very important and there's so much important work that indigenous laws have to do in informing the common law and just how we interact with each other but I always feel sort of inadequate when I get asked these questions because honestly I only speak my language a little bit I was trained in a common law institution and you know when I graduated here there was virtually nothing about indigenous law so I'm a student as much as the students in this room are students of indigenous law and but there's you know there's work to be done the TRC talks about how much there has been lost so it's almost sort of like a precursor we need the space to be able to do this work and answer these wonderful questions about the role of indigenous law because it does we're still sort of at early stages of that there's some great work happening like with Hadley and Val but it sometimes makes me feel inadequate in answering that question but I think that we do need the space and that's why I think that bringing it back to my talk which is we can't continue to have this relationship we need to address the issues of systemic underfunding in child welfare and virtually all other areas and this process of continuing to fight indigenous people in first nations at every point on every issue and not address it is hampering us and hindering us from actually getting to dealing with those far more fun questions that you're posing Pooja but we need to deal with those as well and that's something I feel very strongly about with some temerity I'll take a run at some of this stuff and I agree with everything that's been said so far which is the easy part harder part of what I want to say I'm cautious from my Poo as a government lawyer to say too much about which path we should be following in what particular order I think that cultural literacy is good if it's done in the right way as long as it's not papering over systemic racism systemic refusal to understand an indigenous perspective on everything systemic and profound refusal to accept different ideas of sovereignty so I think we need to pursue an awful lot of paths with the great urgency so in my little world of litigation we're trying to help a government find the way the resources, the money, the wherewithal to reform child welfare systems and to reform the fact that kids have to be into a child welfare system at all and to not forget the past things like the 60's scoop where okay first you dismantle societies by a residential school system and then the outcropping of that is people who are so disconnected that they are not parents in the normal way and so you have to scoop them in the tens of thousands and ship them off around the world to completely disconnect them to their identity so you will have heard a partial resolution to some of those historic things by at least maybe it's tokenism, maybe it's a, I mean at least to think those who are initially part of this in terms of status unions will feel at least there's some recognition of what harm was done to them in the last 60's scoop and we have a long way to go with respect to those who are left out of that settlement and we have a long way to go with respect to the current and future child welfare systems of which this is part of that continuum we need to reform our understandings of law and traditions I guess Jeff I'm a little more optimistic about the supreme court so I'm not a great believer that all these things have to go to the supreme court but when people choose that court I think we should be optimistic and come up with new approaches so you're right that the notions of reconciliation have been founded in the main so far on well our sovereignty trumps your sovereignty but a colleague of ours who a very senior litigator who was appalled at how quickly the shelf life of supreme court of Canada decisions ends when we go from the Sue Rodriguez case to the Carter case 19 years barely and suddenly a lot of the criminal shifts on the thin premise that the principles for charter analysis have changed but the good news from that is that the court can rethink some principles so I take a grain of hope from a decision involving someone I got to know a bit many years ago Grand Chief Mike Mitchell from the Mohawks of Aquasocny he said let's test our sovereignty a bit let's go and intentionally bring some washing machines and motor oil and other stuff across the border and see what are the boundaries of sovereignty so you could read the case narrowly and say Canadian sovereignty trumps Mohawk sovereignty I'm not so sure that's where the court will go 19 years later or later depending on who's the panel that hears it because Justice Binney said well you know there's a merge sovereignty here it's not a trumping of one over the other it's a sovereignty that we have to figure out so in that case maybe the result if you just look at that was a trumping of one sovereignty by another but if another court picks up that that task, picks up the feather and talks a little bit about it now it may come up with a completely different idea so I'm more glass half full than glass half empty on that one so if I appeal to my secret chief case he has one for me do you want to share that comment with everyone? no no I'm going to say what she said she said so if I appeal my super chief case you won't appeal or intervene hahahaha that's just probably a great sense to the top I thank them for coming to Halifax including Elmi who's here today with us thank you