The Canadian legal system has in large part operated to the detriment of Indigenous peoples. From banning potlatches (1885-1951), denying basic citizenship rights (the right to vote, the right to obtain legal counsel, the right to leave the reserve, the right to pre-empt land, the right to become a doctor or a lawyer without losing status), denying the right to speak ancestral languages and raise Indigenous children in their home territories in accordance with traditional laws, family, community and governance structures.
The law has been used to target and “do away with”[1] the most important aspects of who we are – our children, our culture, our legal and governance structures, and the land. Understanding how the law has and continues to impact Indigenous peoples is critical for lawyers working with Indigenous peoples, and essential for fulfilling the TRC Call to Action #27, which calls for cultural competency in the legal profession.
It is also important to recognize that Indigenous peoples are underrepresented in the legal system (as lawyers), while being overrepresented as clients in many areas of law. With Indigenous peoples making up less than 2% of the legal profession, it is more likely than not, that Indigenous peoples will be represented by non-Indigenous lawyers in the justice system. Combining this with the history of colonization and oppressive laws and policies imposed on Indigenous peoples, it becomes all the more important to ensure that lawyers are serving Indigenous peoples in a culturally appropriate way if we are ever to reverse the harmful impacts of the legal system on Indigenous peoples.
One way that this lack of representation has impacted Aboriginal law is the critical lack of Indigenous voices in the actual process of law and decision-making. If you ask an Indigenous person whether they can easily understand and relate to court judgements or legal processes concerning Aboriginal rights, I would guess that a large majority of them would say they don’t. Despite the case law hailing the importance of “the Aboriginal perspective” in matters concerning Aboriginal rights, the case law itself and related legal processes are woefully absent of any actual Aboriginal perspectives (which one would think should include an articulation of how Indigenous peoples themselves understand their rights). Clearly there remains to be a disconnect between the law and Indigenous peoples. Indigenous peoples continue to be impacted by the law, rather than being active participants in the law in many ways.
If we are to serve Indigenous clients well, at the very least we should listen to their voices, honour them and do our best to create a space to have those voices recognized and legitimized at law and as law (the treatment of Indigenous law as law). All too often legal processes exclude and/or fail to give due weight to the voices that are most important in the name of expedience, strategy and budgetary constraints. The exclusion of Indigenous voices, however, can render court judgements and legal processes, whether favourable or not, less meaningful and practical in terms of actually implementing them, as they do not reflect the actual voices of Indigenous peoples and how they understand their rights, interests and relationships to the land and water. Which of course will result in further conflict down the road, as is natural in any relationship where one party is not being understood and where the legitimacy of the process and rules are in question.
By listening to and honouring Indigenous voices we also help to foster the growth and recognition of Indigenous law, as part of listening to and honouring Indigenous voices will necessitate change to the law itself, or at least challenge it, to make way for a proper recognition of Indigenous legal principles and processes.
I do not propose anything complex to accomplish this and I am sure that there will be plenty of practical tips that come out of the Indigenous cultural competency training that will soon be required by all practicing lawyers in BC. But I write this – as an Indigenous lawyer – to emphasize the need for centering our practice around listening and honouring Indigenous voices. These voices have been excluded, ignored, and suppressed for far too long under the Canadian legal system, and are not adequately represented today. With that in mind, we should be asking ourselves the following basic questions in serving Indigenous clients: Am I including and honouring the voices I’m serving? If not, what are the barriers and how can I overcome those barriers? Are Indigenous voices included and reflected in the legal processes I am proposing or participating in? If not, how do I ensure they are and if they cannot be adequately represented in those processes, what are my ethical obligations in dealing with that?
[1] “The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change.” – John A. Macdonald (1887), explaining the purpose of the Indian Act.