We call upon 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.
Indigenous Watchdog Status Update
|Current Status||Jan. 10, 2022||IN PROGRESS|
|Previous Status||Dec. 5, 2021||IN PROGRESS|
The Federation of Law Societies of Canada made an initial commitment to respond to the Calls to Action on Mar. 11, 2016. On June 6, 2020 the Federation Council unanimously approved recommendations that chart path towards reconciliation. The report was released with 9 recommendations.
Most of the Provincial Law Societies have initiated a response to this Call to Action. Canadian Bar Association endorses this C2A as do multiple Faculties of Law.
Federation of Law Societies
The Federation of Law Societies of Canada is the national coordinating body of the 14 law societies mandated by provincial and territorial law to regulate Canada’s 100,000 lawyers, Quebec’s 4,600 notaries and Ontario’s 7,600 licensed paralegals in the public interest. It is a leading voice on issues of national and international importance relating to the administration of justice and the rule of the law.
On March 11, 2016, the Council of the Federation voted to establish a working group to develop recommendations on how best to effectively respond to the Calls to Action. The Council resolution included a commitment to a process that engages representatives of Indigenous peoples.
Nov. 20, 2017 – Commitment by incoming President Sheila McPherson, partner with the firm of Lawson Lundell LLP in the NWT, to advance strategic plan objectives of responding to the TRC calls to Action as they relate to the legal profession.
Nov. 15, 2019 – Commitment by incoming President Morgan Cooper, General Counsel of Memorial University in St. Johns Newfoundland to press ahead with work in response to the Calls to Action of the Truth and Reconciliation Commission as they relate to the legal profession” and finalizing the Strategic Plan 2020-2023.
Aug. 7, 2020: Federation of Law Societies – Federation Council unanimously approves recommendations that chart path towards reconciliation. The report was released on June 6, 2020 with 9 recommendations:
That the Federation make a formal statement of commitment to reconciliation with Indigenous peoples in Canada as part of its framework for responding to the Truth and Reconciliation Commission of Canada, and that it share that commitment publicly.
To demonstrate this commitment, it is recommended that the Federation:
- Adopt and implement the Guiding Principles attached as Appendix C to inform all aspects of the Federation’s work and operations.
- Become the national hub for gathering and sharing up-to-date information about what law societies and law schools are doing in response to the TRC.
- Explore and promote opportunities for building stronger relationships with the Indigenous Bar Association, its representatives and any other national Indigenous organizations it considers appropriate.
That the Federation urge all law societies to make a formal commitment to reconciliation and develop a framework or steps for putting that commitment into action. Law societies may consider adopting the Guiding Principles in Appendix C, if they do not yet have a framework in place, to guide their work on reconciliation.
That the Federation urge law societies to critically examine their regulatory processes and structures to consider how they may be more inclusive of the needs and perspectives of Indigenous peoples, as well as how they may adversely impact Indigenous peoples.
That the Federation urge law societies to provide ongoing opportunities for competency and awareness training for law society leadership and staff.
That the Federation urge law societies to continue to build relationships with local Indigenous organizations, the Indigenous bar, and other appropriate groups, including the legal academy, through formal and informal opportunities for collaboration.
That the Federation urge law societies to collaborate with Indigenous organizations, members of the bar and law students to explore opportunities for providing additional supports to Indigenous students and members of the bar.
That the Federation urge law societies to
- Consider mandatory Indigenous cultural competency training.
- Ensure that legal professionals in their jurisdictions are provided with access to educational opportunities to enhance their knowledge and understanding of Indigenous peoples, the legacy of colonization and the existence of Indigenous legal orders.
- Ensure the availability of a continuum of educational opportunities and resources to recognize the diversity of legal practices and Indigenous peoples and legal orders within a given jurisdiction.
- Collaborate with Indigenous organizations in the development and delivery of cultural competency training or rely on training already developed by such organizations.
That the Federation urge law societies to review their admissions curriculum and licensing requirements and make necessary modifications to reflect the spirit and intent of the TRC Calls to Action.
That the Federation not pursue an amendment to the National Requirement, focusing instead on:
- facilitating ongoing dialogue and collaboration with the legal academy,
- identifying effective methods for sharing information about law school initiatives and resources among law schools, and between law schools and law societies, and
- considering other opportunities for collaboration (e.g. national conference) that may be appropriate
- Actively promote reconciliation
- Reconciliation is, among other things, a commitment to build trust. Trust encourages an open and full exchange of ideas, including disagreement, which is an essential part of any resolution or decision-making journey.
- Reconciliation requires genuine and ongoing dialogue, and active exploration of engagement opportunities with all relevant stakeholders. Ongoing dialogue and engagement are essential for building relationships and demonstrating inclusivity and respect for all participants.
- Reconciliation requires action at both the institutional and the individual levels.
- Respect and make space for Indigenous legal orders
- Reconciliation requires that we acknowledge, respect and understand that Indigenous legal orders existed prior to the establishment of European systems of law in Canada.
- Reconciliation requires that we make space for Indigenous legal orders, processes and traditions as part of Canada’s legal landscape, and recognize how such traditions connect to, or diverge from, the common and civil law systems.
- A legal system that fails to recognize and make space for Indigenous legal orders and the experiences of Indigenous peoples fails to properly serve Indigenous peoples.
- Like all living legal traditions, Indigenous legal principles are not fixed in time; they must be understood as evolving and changing.
3. Ensure institutional transparency and accountability
- There are many reasons for Indigenous peoples to distrust the justice system and its participants, including lawyers and legal education providers. Any work in this area must be transparent and demonstrate that meaningful action is taking place.
- There must be mechanisms for ensuring the accountability of legal regulators and legal educators in:
- improving the knowledge and competency of legal professionals and students
- implementing necessary policy, procedural and/or structural changes to better reflect and serve Indigenous peoples
- making space for Indigenous legal orders in the practice of law
- demonstrating active leadership and an ongoing commitment to reconciliation with Indigenous peoples in Canada
4. Respect diversity and jurisdictional differences
- Reconciliation requires respect for the diversity of Indigenous peoples, experiences, and legal orders in Canada.
- It is essential to recognize the unique experiences of Indigenous women, including both historical and contemporary harms caused by colonization.
- The Truth and Reconciliation Commission Calls to Action should be interpreted broadly to encourage a diversity of responses from legal and justice system stakeholders.
- Reconciliation activities should complement, support and encourage the variety of responses already occurring within law societies and law schools
- Encourage individual and systemic responsibility for reconciliation
- Reconciliation requires thoughtful reflection and change at both a systemic and an individual level, including reflection on how one’s own experiences, biases, and perspectives contribute to the process of colonization.
- Individual members of the legal profession have a responsibility to expand their knowledge and understanding of Indigenous perspectives and experiences and to take steps to ensure they are not contributing to the harms their Indigenous clients experience when engaging with the justice system.
- View Competence through Indigenous perspectives
- Indigenous cultural competency requires an appreciation of the existence and intersectionality of:
- Indigenous worldviews, perspectives, legal systems, laws, etc.
- The unique legal context of Indigenous peoples in Canada
- The history of colonization of Indigenous peoples in Canada
- Systematic discrimination and unconscious bias against Indigenous peoples
- Racism experienced by Indigenous individuals
- The international legal principles that apply to Indigenous peoples in Canada
- Diversity amongst Indigenous populations
- Regionally significant information and events.
- The depth of knowledge and understanding required to be competent varies depending on the context. Staff and leaders of justice system organizations and all members of the legal profession require at least a general level of knowledge and understanding. Those working in certain areas, including criminal justice and child protection, require a deeper understanding and awareness.
- General intercultural competence training or awareness does not sufficiently address the realities, experiences and needs of Indigenous peoples. Indigenous-specific cultural competency or awareness training is required.
- Becoming culturally competent requires ongoing learning.
Provincial Law Societies
The Law Society of British Columbia
Dec. 9, 2019 – The Law Society of British Columbia has moved to require Indigenous cultural competency training for all practising lawyers in the province, in response to gaps in legal education that the Truth and Reconciliation Commission identified. The law society’s board of governors determined that lawyer competence includes knowledge of the history of Indigenous-Crown relations, the history and legacy of residential schools and specific legislation regarding Indigenous peoples in Canada.
Beginning in 2021, all practising lawyers in B.C. will be required to take a six-hour online course covering these areas, as well as legislative changes that could arise from the province’s newly enacted Declaration on the Rights of Indigenous Peoples Act. Lawyers will have up to two years to complete the course the mandatory course, which is a first among law societies across Canada, Merrill said. (Globe & Mail)
Law Society of Alberta
Nov. 9, 2020: Pipestone Flyer – All lawyers in Alberta will take Indigenous Cultural Competency training starting in early 2021 as part of the Law Society of Alberta’s response to the 2015 Truth and Reconciliation Commission (TRC). The new mandate will give lawyers a “base understanding of how Indigenous clients experience the law in Alberta and in Canada.”
The Law Society of Saskatchewan
June 22, 2018 – The Law Society of Saskatchewan (the “Society”) recognizes the significance of the work of the Truth and Reconciliation Commission and is committed to implementing the Calls to Action that came out of that work. As such, the Benchers approved the creation of a Truth and Reconciliation Advisory Group to guide the Society’s efforts in this area.
The Law Society of Manitoba
Strategy 3.3 of the Law Society of Manitoba Strategic Plan 2017-2020 states “There are two activities included in support of the strategy to address the Call to Action # 27 of the Truth and Reconciliation Commission (TRC):
- Activity 3.3.1 is to “Increase cultural competency in the delivery of legal services” and
- Activity 3.3.2 is to “Increase cultural competency among the benchers and staff”.
The Law Society of Manitoba’s activities in response to the TRC’s Calls to Action should fall within five broad categories: legal education, internal awareness, governance and operations, support for Indigenous members and collaboration and engagement.
Law Society of Ontario
May 22, 2018 – Developed by The Advocates’ Society, the Indigenous Bar Association and the Law Society of Ontario, The Guide for Lawyers Working with Indigenous People was developed to provide a deeper understanding and a more meaningful inclusion of Indigenous Peoples in the legal process. The goal of the guide is to provide a better understanding of the histories, cultures, laws, including spiritual laws, and legal orders of Indigenous Peoples. The guide also provides practical tools to help lawyers represent Indigenous clients as effectively as possible, and resources for lawyers to continue their education and improve their services to clients and others.
May 24, 2018 – A series of strong recommendations designed to make the Law Society’s regulatory and hearing processes more culturally competent and culturally safe for Indigenous Peoples was approved by Convocation. the Review Panel made nine far-reaching recommendations, including the need to:
- establish and maintain a culturally competent regulatory process and a culturally safe environment;
- establish better communication and engagement with complainants from Indigenous communities;
- create a trusting relationship with Indigenous communities through partnering and exploring ways to increase access to justice;
- build appropriate capacity within the Professional Regulation Division and ensure it is appropriately resourced for major cases and those involving vulnerable individuals;
- ensure cultural competence for staff investigating complaints involving Indigenous licensees or complainants and explore ways to incorporate principles of Indigenous Legal Systems in Law Society processes;
- create permanent, internal structures and supports to appropriately manage investigations and prosecutions of licensees who are the subject of complaints from Indigenous Peoples — and investigations of Indigenous licensees; and
- enhance guidance and education for lawyers and paralegals who serve Indigenous clients who have experienced trauma.
The panel also recommended that the Law Society Tribunal and Tribunal Committee:explore ways to incorporate Indigenous Law principles and apply them in appropriate cases, with the help of Indigenous Law experts; and provide adjudicators with ongoing training in the history of Indigenous Law in Canada, as well as Indigenous methods of dispute resolution, Indigenous ceremony and protocols, the Independent Assessment Process and other relevant topics.
July 28, 2019 – Announced funding for the University of Saskatchewan Nunavut Law Program at the Nunavut Arctic College, a legal education program designed to increase the number of practicing lawyers in Nunavut and to improve access to justice for Nunavummiut. The program is a partnership between Nunavut Arctic College and the University of Saskatchewan College of Law. The Government of Canada will provide the University of Saskatchewan with $341,600 through the Justice Partnership and Innovation Program over the next two years. Funding from the Government of Canada will enable students to engage in experiential learning opportunities in legal advocacy and will establish a legal clinic in Iqaluit where they can gain hands-on law practice experience. The program will also provide guest lecturers on Arctic, Inuit and Circumpolar issues, and will hold programming on cultural skills, Inuktitut legal terminology, and traditional law lectures to reflect the needs and priorities of Nunavut.
Law Society of Ontario Review: Recommendations
Jul 03, 2018: LAC SEUL FIRST NATION — The process that Canada followed to compensate Indian Residential School survivors was so flawed that it should be reopened, according to a Law Society of Ontario report, which also calls upon legal professionals to radically improve their competence in dealing with Indigenous clients.
The governing body for Ontario lawyers and paralegals commissioned a panel last year to advise the profession on how to better serve Indigenous people, with a particular focus on residential-school survivors. Ovide Mercredi, a lawyer and former Assembly of First Nations national chief, served as an independent adviser to the review panel, which released its 77-page report on May 24. The law society assembled the panel after it concluded a disciplinary process against Douglas Keshen, a Kenora lawyer who had handled numerous residential-school compensation claims.
The Law Society:
- must make an organizational commitment to establish and maintain a culturally competent regulatory process; and
- should consider establishing a new office to support the work that the Law Society undertakes pursuant to its mandate when that work involves Indigenous communities and to create a culturally safe environment.
Communication and Engagement:
Where complainants are members of Indigenous communities:
- information about the Law Society, its regulatory process and the role of complainants must be available and communicated in an understandable and culturally appropriate way; and
- depending upon the stage of the complaint matter at the Law Society, communications should include discussion of the issue of remedy from the complainant’s perspective (using the complainant vs prosecutorial lens), including the concept of restoration and how that intersects with the Law Society’s regulatory mandate.
The Law Society must do more to engage with Indigenous people in their community to:
- express the Law Society’s commitment to create a trusting relationship, to enable the Law Society to meet its regulatory mandate in ways that respect the culture of the community;
- explore opportunities to partner and build mutually respectful relationships with individuals, organizations and institutions to help the Law Society advance its commitment, and build trust in the community; and
- explore ways to increase access to justice, including considering the need to develop a cultural liaison with the public.
Specific Professional Regulation Foundations
The Professional Regulation Division should:
- be appropriately resourced to ensure timely, efficient and effective operation of regulatory functions;
- build its capacity to develop formal policies and procedures that flow from decisions of the Tribunal (following all levels of appeal) that raise important regulatory policy issues;
- formulate a plan for the investigation of “major cases” to assist in the management of investigations;
- support prosecutors in developing and refining the skills required to manage and prosecute major cases; and
- ensure all staff have available the necessary mental and emotional supports when working with complainants that are survivors of trauma. This may include but not be limited to the Members Assistance Program.
The Law Society should:
- take the necessary steps to ensure that anyone who investigates complaints at the Law Society involving Indigenous licensees or complainants, in addition to required investigatory experience and skills, is culturally competent to perform these investigations and has the necessary resources available to engage appropriately with members of the Indigenous communities in this process; and
- explore ways to incorporate principles of Indigenous Legal Systems into
- dispute resolution resources available to Law Society investigators, which may be applied in appropriate cases, and
- prosecutorial and dispute resolution resources available to Law Society prosecutors, which may be applied in appropriate cases.
The Professional Regulation Division should create the required permanent internal structures and supports to appropriately manage investigations and prosecutions of licensees who are the subject of complaints from Indigenous people and of Indigenous licensees. These structures and supports should extend to other divisions at the Law Society to the extent that processes related to investigations and/or prosecutions intersect with them.
The Law Society Tribunal and the Tribunal Committee should explore, with the assistance of Indigenous experts, how to incorporate Indigenous Law principles within its adjudicative and dispute resolution processes and apply them in the appropriate case.
Law Society Tribunal adjudicators should receive ongoing training in the history of Indigenous Law in Canada, Indigenous methods of dispute resolution, Indigenous ceremony and protocols, the Independent Assessment Process and other relevant related topics.
Other Law Society Functions
Recommendation 9 – Practice Supports
The Law Society should ensure that guidance and education is available for lawyers and paralegals who serve Indigenous clients who have experienced trauma arising from the Indian Residential School experience, the Sixties Scoop or the Day Schools settlement to assist in their competent representation of these individuals.
A new booklet designed for people working in the criminal justice system aims to give more context and understanding when working with Indigenous people involved with the system. It provides information about the Indigenous groups in Atlantic Canada, a brief history of Indigenous-Crown relations and The Indian Act, as well as how generational trauma, such as the residential schools, are still having an effect today. Bringing Balance to the Scales of Justice was designed by the Mi’kmaq Confederacy of P.E.I. in partnership with the Elsipogtog Restorative Justice Program in New Brunswick, the Miawpukek First Nation in Newfoundland and Labrador and the Mi’kmaq Legal Support Network in Nova Scotia. It was released in the last month and is now being distributed to police, court officials, probation officers, judges and lawyers throughout the Atlantic region. (CBC)
Canadian Bar Association
The Canadian Bar Association (CBA) is a national association representing 36,000 jurists, including lawyers, notaries, law teachers and students across Canada
Responding to the TRC Calls to Action March 2016
The CBA submission was led by the CBA Aboriginal Law Section, with input from other CBA groups including the Criminal Justice Section, Family Law Section, International Law Section, Women Lawyers Forum and Children’s Law Committee, and assistance from the Legislation and Law Reform Directorate at the CBA office. The submission has been reviewed by the Legislation and Law Reform Committee and approved as a public statement of the CBA.
The Canadian Bar Association (CBA) fully supports the goal of achieving reconciliation with Canada’s Indigenous peoples. Many of the calls to action are consistent with CBA policies and have our unqualified support. We plan to continue our efforts to advance those positions, with reference to the TRC work.
CBA response to Call to Action # 27
The CBA is a leader in the field of continuing legal education and professional development who organizes national, regional and local conferences, seminars and workshops for lawyers that include components of cultural competency training. Relevant topics to date include some of those referenced in calls to action 27 and 28 concerning the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Treaties and Aboriginal rights, and Indigenous law and Aboriginal-Crown relations. CBA skills-based training has touched on intercultural competency, conflict resolution, human rights and anti-racism, areas that are often relevant for lawyers practicing in areas of law that impact Canada’s Indigenous peoples, even if indirectly. The CBA will continue to sponsor these events, and consider how to further expand cultural competency training to our members.
Resolution carried by the Council of the CBA at Annual meeting on August 11, 2016
Association commits to further advancing the TRC Calls to Action internally by:
- introducing an IRS educational component at professional development events to educate lawyers on the IRS legacy and the TRC recommendations;
- reaffirming and promoting CBA resolutions on specific subjects in the Calls to Action, and encouraging new policies aimed at addressing other aspects of the Calls to Action;
- developing a central website of materials to advance the Calls to Action, including videos and papers, and lists of speakers and workshop leaders;
- working with others developing materials for the legal community, businesses and the public to encourage cultural competency and education on the IRS legacy and the work of the TRC;
- working with the Federation of Law Societies of Canada to ensure its Model Code of Professional Conduct includes lawyers’ responsibility to educate themselves on these issues;
- providing cultural competency training and IRS legacy education to all CBA staff; and
- hiring a professional firm to review the CBA’s current structure to identify any barriers to the participation of Indigenous lawyers within the CBA.
Official Federal Government Response: Sept. 5, 2019
The Government of Canada is not the lead on a response for Call to Action 27.