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Guide for Lawyers Working with Indigenous Peoples

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Guide for Lawyers Working with Indigenous Peoples Guide for Lawyers Working with Indigenous Peoples A joint project of: The Advocates’ Society The Indigenous Bar Association The Law Society of Ontario Publication Version May 8, 2018 Guide for Lawyers Working with Indigenous Peoples A joint project of: The Advocates’ Society The Indigenous Bar Association The Law Society of Ontario Table of Contents 1 OVERVIEW .............................................................................................................. 3 1.1 Introduction ........................................................................................................ 3 1.2 Key Themes ....................................................................................................... 5 1.3 Purpose and Scope ............................................................................................ 5 1.4 Currency ............................................................................................................ 6 2 LEARNING FOR LAWYERS.................................................................................... 7 2.1 Understanding the practical implications of the Truth and Reconciliation Commission’s Report ................................................................................................... 7 2.2 Understanding the importance of cultural competence .................................... 10 2.3 Understanding Indigenous Relationships ......................................................... 26 2.4 Understanding differences in language ............................................................ 32 2.5 Understanding the relationship between Indigenous Peoples and Canada ..... 35 2.6 Understanding the implications of leading legal directives ............................... 40 3 PUTTING LEARNING INTO PRACTICE ............................................................... 42 3.1 Meetings, interviews and engagement ............................................................. 42 3.2 Adapting the laws of evidence.......................................................................... 52 3.3 Gaining specific guidance in particular areas of law ......................................... 64 3.4 Understanding and using existing Indigenous issue protocols ......................... 74 4 RESOURCES ......................................................................................................... 75 4.1 Constitutional Protections ................................................................................ 75 4.2 Leading Cases ................................................................................................. 76 4.3 Leading Non-Judicial Sources.......................................................................... 88 4.4 Protocols for Dealings with Indigenous Peoples and Issues ............................ 90 4.5 Annotated Map of Indigenous communities in Canada .................................... 94 4.6 Glossary of terms ............................................................................................. 94 4.7 List of Organizations and Agencies .................................................................. 95 4.8 Friendship Centres ........................................................................................... 99 4.9 Health and community resources ................................................................... 100 4.10 Resources on writing a Gladue report ............................................................ 102 4.11 List of interpreters .......................................................................................... 104 4.12 Cultural Training Programs / Organizations ................................................... 106 4.13 Legal Specializations ..................................................................................... 108 5 FOR FURTHER READING .................................................................................. 109 PUBLICATION VERSION – May 8, 2018 Please send comments to [email protected] 1 6 ACKNOWLEDGMENT & THANKS – MIIGWETCH ............................................. 115 PUBLICATION VERSION – May 8, 2018 Please send comments to [email protected] 2 Guide for Lawyers Working with Indigenous Peoples A joint project of: The Advocates’ Society The Indigenous Bar Association The Law Society of Ontario (formerly Law Society of Upper Canada) 1 OVERVIEW 1.1 Introduction There is a growing recognition in Canada, across all sectors and regions, of the need for a deeper understanding and more meaningful inclusion of the Indigenous Peoples1 of Canada. One of the centrepieces of this recognition was the Final Report of the Truth and Reconciliation Commission of Canada, released in 2015, which included 94 calls to action to effect reconciliation with Indigenous Peoples. Call to Action 27 was directed at the legal community of Canada, calling on us (through the Federation of Law Societies of Canada) to: Ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti- racism. This admonition is consistent with the findings of a long line of court decisions, governmental studies and special commissions across the country. As the Supreme Court of Canada concluded in R. v. Delgamuukw, “Let us face it, we are all here to stay.” Reflecting on that statement, the former Chief Justice of British Columbia, Lance Finch, surmised: True enough: but if in the face of this reality we are to find space for multiple legal orders to co-exist, and if we are ultimately to achieve an equal reconciliation, we must recognize that to stay must also be to learn.2 1 The term “Indigenous” is the main reference relied upon today, but we note that caselaw and earlier jurisprudence and academic writing use the term “Aboriginal”. 2 Lance SG Finch, “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice”, Continuing Legal Education Society of British Columbia, November 2012 at 2.1.2. [emphasis added] PUBLICATION VERSION – May 8, 2018 Please send comments to [email protected] 3 The Guide for Lawyers Working with Indigenous Peoples was written in the spirit of these ideas. This Guide is intended to be a starting resource to help lawyers and others in the justice system to learn about Indigenous cultures and understand the interplay between Indigenous legal orders and the Canadian legal system. However, reading this Guide cannot replace building meaningful relationships with Indigenous peoples, communities, and organizations, nor should it be the only action a legal practitioner takes to better understand legal matters relating to Indigenous peoples. In 2016, The Advocates’ Society formed a Task Force of individuals with experience and interest in working with Indigenous Peoples in the legal context. The Task Force members, listed at the end of this Guide, are members of the bar of varying levels of seniority, from public and private practice, and former members of the bench. Our outreach led to a three-way partnership for the project, adding the expertise and resources of the Indigenous Bar Association and the Law Society of Ontario (formerly Law Society of Upper Canada). For more than a year, the Task Force worked together to identify key areas of focus for learning and practical guidance. Task Force members conducted extensive research and shared their own varied personal experiences. Upon completion of a draft version of this Guide, the Task Force engaged in a series of consultations with a broader cross-section of members of the bar, bench, academia, community workers and Elders. Feedback was gratefully collected from individuals and associations across the country, through meetings, conferences, telephone interviews and electronically. The result is a Guide which incorporates the views of a number of leading authorities who work with Indigenous Peoples on a regular basis. We thank everyone who provided input. The Guide is not intended to be exhaustive or an all-encompassing resource. It is only a starting point for advocates and others working with Indigenous peoples in legal proceedings. The Guide was prepared respectfully and with our best efforts. We recognize that there will be generalizations and omissions, particularly given the diversity of Indigenous cultures, traditions and histories across a vast geography. The learning through this project and other initiatives must continue. This Guide is intended to be an iterative and living document. It will be supplemented and amended from time to time with a continued view towards reconciliation. Comments on the Guide are welcome and may be sent to [email protected]. PUBLICATION VERSION – May 8, 2018 Please send comments to [email protected] 4 1.2 Key Themes This Guide is intended to assist lawyers – litigation counsel in particular – as they work with Indigenous Peoples (First Nations, Inuit and Métis Peoples) and related issues in Canada.3 A better understanding of Indigenous Peoples, including histories, cultures, laws, including spiritual laws, and legal orders, is an essential part of representing and working with all members of our communities. Indigenous law is important to everyone, not just Indigenous peoples. Treaties and the Constitution are the highest law of the land. This Guide aims to provide
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