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Dalhousie Law Journal

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Category: Indigenous

DLJ Podcast – Ep 21 – Naiomi Metallic – Searching for Superchief

Join Tom and Naiomi Metallic, Assistant Professor of Law and Chancellor’s Chair in Aboriginal Law and Policy at Schulich School of Law, as they discuss her paper from the Osgoode Hall Law Journal, “Searching for Superchief and Other Fictional Indians: A Narrative and Case Comment on R v Bernard”

Naiomi recounts her experiences litigating the case dealing with Mi’kmaq hunting rights, the story of Stephen Bernard and the major problems with the decision.

Resources:
Naiomi’s paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss1/5/
Dalhousie Profile: dal.ca/faculty/law/faculty-staff/our-faculty/naiomi-metallic.html 

 

Blog + Ep 19 – Naiomi Metallic – Quebec, Bill C-92 and Indigenous Youth and Families

Blog by Jonfranco Monaco. Podcast by Roisin Boyle.

In 2019, the Federal Government passed Bill C-92, a groundbreaking piece of legislation identifying the inherent right to Indigenous self-government in Canada with respect to child and family services. In response to the new bill, the Government of Quebec launched a constitutional challenge against the Federal Government. The Schulich School of Law’s own Professor Naiomi Metallic is advocating for the First Nations Child and Family Caring Society, an intervenor in this case on the side of the Federal Government. The Dalhousie Law Journal’s Roisin Boyle had the privilege of sitting down with Professor Metallic and gaining more insight into this dispute over Bill C-92.

There are two major components to Bill C-92, both of which are responding to several issues that have been identified over the years with respect to Indigenous child welfare services and systemic problems plaguing these services nationwide. The bill seeks to implement national standards in providing appropriate Indigenous welfare services, intending to overlap with existing provincial services to better help keep Indigenous children in their communities and with their families. As well, the bill looks to establish a self-governance framework permitting Indigenous governments to pass their own laws and provide them their own ability to address child welfare issues in their communities.

Quebec’s position against the introduction of Bill C-92 is twofold. Firstly, they are arguing that under Section 91(24) of the Constitution Act, Canada does not have the jurisdiction to pass this bill. Here, Quebec is looking to highlight the problematic nature of national standards that this bill would impose on Quebecois public servants. Secondly, Quebec is objecting to Canada passing legislation generally recognizing the right to self-government (with mind to the specific area of child welfare). Quebec is claiming that the status quo of, in Professor Metallic’s words, “legislative neglect” towards Indigenous Canadians has become embedded in the fabric of Canada’s constitutional architecture, so much so that any modification to this status quo should require a constitutional amendment to be enacted. Professor Metallic also points out that, historically, Quebec has been complicit in its neglect of Indigenous issues, yet Quebec has framed its challenge around the incursion on its powers.

On the other side of this coin, Canada is arguing that under Section 91(24), it does have the jurisdiction to pass Bill C-92. Furthermore, Canada claims this does not create a new right to self-government, as that right already exists in Section 35 of the Constitution Act, 1982. The Caring Society’s role as intervenor in this dispute is to provide more context around the human rights case at hand. Professor Metallic points out that there is a lot of potential to advance reconciliation that would come from Canada using its power under Section 91(24), and that this is a matter of recognizing Indigenous peoples’ equality and needing this legislation to do so.

Although you cannot be certain of any outcome at this stage, Professor Metallic remains hopeful that the courts will see the importance of governments having a fundamental role in helping to protect and implement Indigenous rights.

If this is an area that you would like to learn more about, we urge you to listen to the full episode of The Dalhousie Law Journal Podcast on Spotify.

What does decolonizing research mean to me?

By: Nayha Acharya, Assistant Professor of Law – Schulich School of Law

On October 22, 2020, the Schulich School of Law convened a panel for our faculty seminar series to discuss “Decolonizing Research.” I was part of this panel along with Sherry Pictou, Naiomi Metallic, and Olabisi Akinkugbe.  Each panelist responded to the question “What does decolonizing research mean to you?” and then engaged in an open discussion with the faculty members and graduate students who were present. I have offered a slightly edited version of my narrative here.

My initial reaction when I received the invitation to be part of this panel was that I didn’t think I could contribute much because I hadn’t set out to expressly decolonize my research, and decolonization has also not been a substantive area of research for me. In fact, most of my writing so far has involved an analysis of the legitimacy of the adjudicative system—a system rooted in a Western worldview.

On reflection, though, I realized that for several years now, I have been in a process which I think I can rightly call decolonizing myself, and I have seen that internal shift starting to impact my research.

This phenomenon of what I’m referring to as self-colonization is something that I find quite fascinating among Asian immigrants and their children.  I, like many, grew up straddling two cultures plus my own personality. Indian heritage was prevalent in my upbringing, but what I find so intriguing is that there was also a clear commitment that the dominant White culture, with its institutions and ideals, is hierarchically better and more important. After all, why else would we have come to Canada? It follows then, that we must be grateful to be part of Canadian society (which I am) and that we should also demonstrate that gratitude by conforming to the dominant culture and its behavioural norms, by not asking for or expecting too much, by accepting that the hurdles that are put before us are deserved, and by being at least a little apologetic about being here. It’s this internalization and the subsequent breaking down of it that I wanted to share in the panel discussion and in this piece.

Before I came to the Schulich School of Law for graduate studies, I worked at a law firm where I quickly felt very uncomfortable. Over the years, that developed into a sense that I was not good at law. There may be some objective truth to that, but that idea developed in me (as I believe it does in others) at least in part because of a misperception that every structure, every institution, and the expectations of the dominant culture, are wholly legitimate, and my discomfort arises because I am illegitimate, problematic, or wrong. (I want to be careful here not to overstate a sense of being a victim of the law firm I worked at—I do not perceive myself that way.  First, I met one of the most important mentors in my life at the law firm I was at, and many other lifelong friends. And, I also had (and continue to have) extensive privilege due to my socio-economic background. But when I dig into my memories, the emotions, thoughts, and feelings that I describe here are starkly present.)

So, this sense of illegitimacy in law, along with a commitment that Western institutions, structures, culture, and way of thinking and behaving all represent what is ‘right’ came with me when I started doing research in law. I have contemplated how this impacted my research.  First, I noticed that I easily adopted an arms length, purely analytical style in my writing, which doesn’t leave room for any subjective “me”. This seems consistent with my internal state of being, wherein “me” was illegitimate—it doesn’t need to appear distinctly in my writing, and in fact it shouldn’t. Second, my doctoral work focused on searching for an articulation of the legitimacy of the legal adjudication system. I do like my work in that arena, and I think it is analytically sound, but it was limiting in that I was focusing exclusively on Western jurisprudence and learning from and citing only theorists who have Western worldviews and seeing their debates as the only ones that are relevant in theoretical work about law.

I have found that the more I have broken down my internal commitment to a hierarchy of cultures, and the less I have tried to define my own legitimacy in comparison to the dominant culture, the more freedom I feel, and correspondingly, my research is also freeing itself from those initial constraints that I had put on it. I have found that I have discovered, and accepted the validity of, methodologies that allow for subjectivity—like autobiographical inquiry, meditative inquiry, narrative research, and writing, which are prevalent in other fields like Education and which Sherry Pictou (a co-panelist) would have more familiarity with than me. I have dabbled in these methodologies and have enjoyed the work that has emerged tremendously, because that work is connected to my heart, while my analytical work is connected primarily to intellect.

Substantively, I have moved into writing about conflict resolution and mediation, which have at their core a foundational and remarkable critique of the formal system of law and adjudication that prevails, and whose roots can often be traced to non-Western ideas/ideals. This area has also enabled me to introduce non-Western concepts and writers into my research because Eastern philosophy has done incredibly insightful work on conflict for centuries. I have becoming keenly interested, for example, in the philosophy of Jiddu Krishnamurti who has discussed, extensively, the human experience of conflict.

These research shifts, to me, are a by-product of a process of self decolonization. I’m grateful that this process has unfolded in me, because it has allowed me to let go of “imposter syndrome”, and to stop trying to constantly measure up to any dominant culture or ideology—whether that’s law firm culture, or law school culture, or Indian culture, or anything.  I don’t feel like an imposter in the academic world because teaching and writing feel natural to me, and I no longer believe that any ideological, cultural, or behavioural conformity should dictate anyone’s actions or self-concept. The sense of freedom that comes with letting go of being internally dominated by any external force (which is perhaps a broad definition of colonization) is necessary, not just to meaningful research and writing, but also to living fully.

Explore more of Nayha Acharya’s work:

Watch a presentation of related remarks at the J Krishnamurti and Contemporary World Crises Conference.

Read her paper, “Critiquing Instrumentalism in Higher Education,” about non-traditional teaching methods available open-access.

Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law

Christiane Guay, Associate professor of social work, Université du Québec en Outaouais

Naiomi Metallic,  Assistant professor of law, Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University 

Hadley Friedland, Assistant professor of law, University of Alberta

 

 

Six months after Bill C-92 passed in Parliament and mere weeks before the new law comes into force on January 1, 2020, Québec initiated a reference before its Court of Appeal to challenge the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24.  We believe the reference is unlikely to succeed in quashing the Act but certain to cause delay.

It is a delay that Indigenous children and families can ill afford. In Quebec, slightly less than 3% of children are Indigenous, while they make up 15% of children placed in foster care. Provincial child welfare laws contribute to the over-representation of Indigenous children at all stages of the system. Indigenous children placed in non-Indigenous foster families are not only deprived of their families, they are denied the opportunity to grow in their communities and learn their language and culture. In the 2017 Brown v Canada case on the ‘Sixties Scoop,’ numerous experts found this causes “great harm.” Research also shows that Indigenous children have worse outcomes and are more likely to die in care than non-Indigenous children once they are in care.

In reality, child protection systems, based on non-Indigenous conceptions of the family and administered by non-Indigenous decision-makers, predictably produce harmful and discriminatory effects when they are applied in an Indigenous context. This is why the Truth and Reconciliation Commission (TRC) said that these regimes are simply continuing the assimilation processes started by the Indian residential schools.

The major innovation of Bill C-92 is that it finally, and logically, sees the solution to this intergenerational and interjurisdictional “humanitarian crisis” lying in recognizing Indigenous peoples’ power to legislate and administer child welfare services for Indigenous people. Numerous studies have shown that self-government with respect to social services produces more positive results than the status quo. It improves the socio-economic conditions of communities and promotes the development of community-driven approaches to ensure Indigenous’s children’s long term security, healthy development and to preserve their cultural identity.

Bill C-92 also responds to TRC Call to Action #4 to establish important minimum standards so all Indigenous children and families receive the same baseline protections no matter where they live or if they move between provinces. In the United States, similar legislation was passed by Congress in 1978, recognizing Indigenous peoples’ inherent sovereignty and setting national standards concerning Indigenous children in all states. While not perfect, over the past 40 years, this law has significantly reduced over-representation and encouraged effective local innovations for strengthening Indigenous families.

Rather than embarking on the path of change, Quebec is seeking to have Bill C-92 quashed on the bold assertion of exclusive provincial jurisdiction over Indigenous child welfare matters.  This is unprecedented. No province, including Quebec, has ever insisted they have exclusive responsibility for delivering essential services for Indigenous peoples. Quite the opposite. Rather, time and time again, the provinces and federal government have played hot-potato with Indigenous issues.  The National Inquiry into Missing and Murdered Indigenous Women and Girls stated that this “interjurisdictional neglect” violates s. 7 of the Charter.

It does not seem the province considered the full implications of what it is asking of the Quebec Court of Appeal.  A finding of exclusive jurisdiction for Quebec in relation to Indigenous child and family services does not only mean the nullification of Bill C-92.  Legislative responsibility entails fiscal obligations.  It would seem Quebec wants jurisdiction without strings attached, but that does not seem likely (or respectful to the fundamental rights of Indigenous peoples).  And not only would Quebec have to pay for the delivery of child welfare services in Indigenous communities, a confirmation of jurisdiction in this case would surely also entail exclusive provincial jurisdiction in similar areas like social assistance, housing, water treatment and emergency services.  A finding for Quebec would also result in all other provinces being found to be in a similar situation.  In addition, surely the numerous tripartite self-government agreements that have been negotiated will be open to challenge by the federal government on the same grounds.

Supreme Court of Canada precedent strongly suggests that Quebec’s gamble is foolhardy.  The Court favours broad overlapping jurisdiction in relation to most matters. In Canard and Natural Parents , the Court confirmed that the Parliament may legislate in respect of “Indians” in areas that overlap with provincial powers (in the areas of wills and estates and adoption, respectively). Indeed, as renowned constitutional scholar Peter Hogg has noted: “[i]f s. 91(24) merely authorized Parliament to make laws for Indians which it could make for non-Indians, then the provision would be unnecessary.”  In other words, the federal power in relating to “Indians” must include the power to legislate over matters for Indigenous people that would otherwise be provincial for other citizens, or else the federal power would be meaningless.

In keeping with these precedents, Bill C-92 is a concurrent jurisdiction model. Family law has always been an area of concurrent jurisdiction so Quebec courts already routinely apply both federal and provincial statutes to reach the best interests of the child in particular circumstances. The sky is not falling.

Instead of initiating costly and regressive court challenges, Quebec could take a leadership role in initiating interjurisdictional cooperation and coordination. Respectful nation to nation conversations and minimal standards of care to increase Indigenous children’s wellbeing shouldn’t be seen as a threat to anything but the appalling statistics.