By President David Crossin, QC and staff lawyer Andrea Hilland
The Truth and Reconciliation Commission’s calls to action were the focus of this year’s Law Society of BC Benchers Retreat held on June 3 in Penticton. The Benchers used the Retreat to gain a broader awareness of the issues highlighted in the TRC Report. In addition to the participation of the Benchers, representatives from other law societies across the country attended with a keen interest in what the Law Society of BC will be doing to address the calls to action set out in the TRC Report.
As a first step, the legal profession must acknowledge the truth of the various ways in which the Canadian justice system has failed, and continues to fail Indigenous people. The TRC Report highlights how Canadian law and lawyers played an active role in forcing Indigenous children into residential schools. The intergenerational impacts of residential schools continue to plague Indigenous people, and it is this legacy that the justice system now deals with.
The Law Society has taken heed of advice from Indigenous lawyers: “nothing about us without us.” Our response to the TRC’s calls to action is being guided by a number of Indigenous legal professionals who helped to shape and inform the Retreat.
The Retreat was co-chaired by Herman Van Ommen, QC, and Ardith Walkem, an Indigenous lawyer. Ms. Walkem instructed lawyers to be mindful of how the legal system continues to perpetuate injustices for Indigenous people. She observed that the same concepts that were used to rationalize residential schools in the past continue to inform the removal of Indigenous children from their communities in the present day. She urged lawyers to be conscientious about the philosophies that underlie the current operation of the legal system, stressing that lawyers should not to be complacent with concepts that undermine equality.
Katrina Harry, an Indigenous lawyer who manages the Parents Legal Centre at the courthouse in Vancouver, conveyed her insights about the tragic legacy of residential schools, and the intersecting factors (such as social problems, economic disparity, and philosophical differences) that lead to the ongoing removal of Indigenous children from their communities.
Grand Chief Ed John presented on the importance of the United Nations Declaration on the Rights of Indigenous Peoples as a framework for understanding and implementing the calls to action. Like Ms. Walkem, he pointed out that racist concepts continue to be applied to the detriment of Indigenous peoples. In relation to the UN Declaration on the Rights of Indigenous Peoples, he explained that the concepts of terra nullius and the “doctrine of discovery” continue to be applied to present-day Indigenous land and resource issues in the Canadian legal system. The UN Declaration renounces terra nullius and the “doctrine of discovery,” and endorses the free prior and informed consent of Indigenous peoples as a minimum standard for addressing Indigenous land and resource issues, and Grand Chief John stressed the need for the Canadian legal system to adopt and apply this standard.
Judge Marion Buller presented on First Nations Courts, stressing the need for improvements to Aboriginal sentencing considerations, and the possibility of extending principles from Gladue and Ipeelee to Indigenous child welfare cases.
The Retreat highlighted what many have already known about Canada’s justice system: it is currently failing Indigenous people. We have to address that. We can’t ignore it.
The Law Society understands that relationships are key to reconciliation. It is a challenge to appreciate how best to heal the relationships between Indigenous people and the justice system. It is our task to start that process. This is not something that will take weeks or months, but rather years. It is not going to happen overnight.
We will be working with the Indigenous community to formulate a specific concrete plan of action to guide us toward reconciliation. The Benchers have endorsed the creation of a permanent advisory committee, with the guidance and participation of Indigenous leaders, to help Benchers engage in issues and facilitate discussions regarding the TRC at the Bencher table.
Nationally, the Federation of Law Societies has struck a working group to address the TRC’s calls to action. The Law Society of BC is seen as a leader in responding to the calls to action, and we are both members of the Federation’s working group.
When introducing the TRC Report, Chief Commissioner Murray Sinclair said: “We have described for you a mountain. We have shown you the path to the top. We call upon you to do the climbing.” Confronting the issues identified in the TRC Report is one of the most important justice issues of our lifetime. The TRC provides a crucial opportunity to begin the difficult but necessary journey toward reconciliation, and the Law Society of BC hopes to lead the way.