Indigenous Legal Education: Osgoode Hall

Osgoode Hall Law School at York University in Toronto has an Intensive Program in Aboriginal Lands, Resources & Governments which has been running for over twenty years. The programme was developed to

effectively improve law students’ understanding of Aboriginal issues and their ability to serve First Nations effectively on their own terms.

The programme is a mix of classroom-based work and field placements. Each student in the programme completes a seven-week long field placement working with an organisation that focuses on Indigenous legal issues. This might be working with an Indigenous organisation, a law firm specializing in Indigenous issues, or a relevant government or public sector agency. These placements may be in Canada or abroad. Over the last year, students have undertaken placements with the following organizations:

  • Assembly of First Nations
  • Chiefs of Ontario
  • Keewaytinok Native Legal Services
  • Windigo Tribal Council
  • British Columbia Treaty Commission
  • Nunavut Department of Justice
  • Ontario Aboriginal Affairs Secretariat
  • Yukon Department of Justice
  • Cape York Land Council, Australia
  • First National Development Institute, Botswana
  • Inter-American Development Bank, Washington, D.C.
  • Maori Legal Service/Te Ratonga Ture Community Law Centre, New Zealand

The placements provide opportunities for a range of experiential learning and as with clinical programmes at other law schools, are intended to both help to meet an urgent need for legal services and also give the students practical experience and an insight into the legal issues faced by Indigenous communities. Students undertake preparatory work before their placements and then present seminars on their experiences after they have returned. This allows from critical reflection on Indigenous legal issues and also enables students to take a step back from their own particular placement and get to grips with some deeper questions as they engage with their classmates.

A more recent development at Osgoode Hall picks up on another strand of Indigenous legal education. In September 2014, the law school organised its first Anishinaabe Law Camp. In part modeled on the long-running Aboriginal Awareness Camp held at the University of Victoria, the Anishinaabe Law Camp aims to focus on Indigenous law, in particular to encourage engagement with Anishinaabe legal traditions. Organised in collaboration with the Chippewas of Nawash, the camp has been held on their community’s reserve land north of Toronto in each of the past two years and is quickly becoming an established part of the law school calendar. Osgoode Professor Andrée Boiselle and UVic Professor John Borrows and his daughter Lindsay (who are from this community) have been instrumental in establishing this camp and ensuring this further dimension of Indigenous legal education is part of the law school programme. For a nice summary of the kind of experience that this provides for law students, see this piece written by one of the attendees at this year’s camp.

Indigenous Legal Education: UBC

This is the second in a series of posts that address interesting or innovative Indigenous legal education programmes at a number of law schools in North America. This post focuses on the Indigenous Legal Studies Program at Peter A. Allard School of Law at the University of British Columbia (UBC).

As with the programme at UVic, the programme at UBC has various strands which each contribute important aspects to the curriculum. UBC offers students the opportunity to participate in clinical practice, an Indigenous Awareness Camp, and take a range of courses focused on Indigenous legal issues, with the option of completing a specialisation in Aboriginal Law. This is also supported by research undertaken by the Centre for International Indigenous Legal Studies and the programme’s participation in the national Aboriginal Rights moot each year.

Formal clinical programmes are a more common part of legal education in North American than in New Zealand. Clinical programmes were a key component of Indigenous legal education at a number of the institutions that I visited. UBC operates the Indigenous Community Legal Clinic in downtown Vancouver. Essentially, the Clinic acts as a community law centre, with a particular focus on meeting the legal needs of First Nations people. The Clinic has both legal and academic directors, both of whom are experienced lawyers. These directors supervise the legal work undertaken by students and develop an academic programme around the students’ practical experiences. The Clinic then has two central purposes:

first, to provide free legal services to the Indigenous community in the Downtown Eastside, and second, to provide legal education to law students in the Allard School of Law. By joining the ICLC, students interested in advocacy, social justice and Aboriginal peoples can gain practical experience and make a meaningful contribution to a historically underserved and marginalized community. Working at the ICLC will give students practical hands-on experience managing client files and making court appearances.

As well as developing practical legal skills, this kind of experiential learning also exposes law students to the situation of Indigenous communities and helps them to see what the particular legal needs are of those communities and also begin to understand the aspirations of those communities and the way they operate. This is also one of the central objectives of the Indigenous Awareness Camp. The Camp is a relatively new development at UBC, the first one being held just last year. UVic has run a similar camp for 20 years now, but the adoption of the camp by UBC (and other schools such as Osgoode Hall, which I will touch on in a future post) illustrates an increasing recognition of the value of such camps as part of the law school experience.

The range of courses at UBC that focus on Indigenous legal issues is impressive and has enabled them to develop the specialisation in Aboriginal Law. To qualify for the specialisation, students must complete papers on Constitutional Law (Aboriginal and Treaty Rights) and Aboriginal Peoples and Canadian Law as well as a certain number of credits from other specified courses including Aboriginal Self Government, Aboriginal People and the Administration of Justice, First Nations and Economic Development, Indigenous Peoples in Comparative and International Law, the Aboriginal Rights Moot or the Indigenous Community Legal Clinic. These courses are supported by an impressive faculty that includes Gordon Christie, Darlene Johnston, Johnny Mack, Alex Wolf and Patricia Barkaskas at the Community Clinic, and Dana-Lyn Mackenzie as Associate Director of the Indigenous Legal Studies Program.

I was also interested in how UBC also clearly think that it is important to think carefully about the physical environment of the law school in terms of Indigenous issues.

UBC has picked up on some of the things that UVic has been doing but also has developed its own initiatives in this area. But, again, what was notable was the mix of clinical/experiential and classroom learning and the engagement with Indigenous communities that is built into the programme.

Indigenous Legal Education: UVic

Over the last month, I’ve had the opportunity to visit a number of universities in Canada and the USA that are doing interesting and innovative things in the field of Indigenous legal education. I thought that I would share a little about some of the programmes and initiatives that these institutions are running.

The first institution that I visited was the University of Victoria in British Columbia. Sometime ago, I wrote a post about the Bachelor of Indigenous Laws programme that UVic is developing. Now styled as a JID, to reflect the North American juris doctor (JD) law degree, the programme is still in development. Important progress is, however, being made.

An Indigenous Law Research Unit has been established. The vision of this research unit is described as follows:

Our vision is to honour the internal strengths and resiliencies present in Indigenous societies and in their legal traditions, and to identify legal principles that may be accessed and applied today – to governance, lands and waters, environment and resources, justice and safety, and building Indigenous economies.

Led by Val Napoleon, the Indigenous Law Research Unit (ILRU) engages with Indigenous communities to assist those communities to use their own laws and processes to address issues faced by those communities. At the same time, this work provides an important foundation for the developing JID programme. Research assistants that work with the Indigenous Law Research Unit undertake coursework which provides training on working with Indigenous legal traditions and it is intended that this coursework will eventually form part of the JID. It is also envisaged that the JID will have a significant experiential or clinical component and that students in the JID might have formal placements working with Indigenous communities. The work the the Indigenous Law Research Unit is currently undertaking is also helping to establish and strengthen the law school’s relationships with Indigenous communities and refining an approach to this work which is supportive of Indigenous communities and also allows law students to gain vital experience. And the substantive content of this work – the identification and articulation of Indigenous laws, legal principles and processes – is also helping to build a curriculum for the JID programme.

To support this work and encourage critical thinking and discussion about Indigenous law, the Indigenous Law Research Unit has also produced a series of videos on the topic (available on the ILRU website and definitely worth a look if you haven’t seen them). The videos feature leading Indigenous scholars, including Val Napoleon, John Borrows, Jeff Corntassel, and Johnny Mack. The ILRU has also produced a discussion guide to accompany the videos and draw out key ideas and perspectives on these issues. This also builds on work that the ILRU did in conjunction with the Indigenous Bar Association on the Accessing Justice and Reconciliation Project, which, amongst other things, produced a number of educational resources, including a graphic narrative and teaching guide.

In short, there is a range of great stuff being done in this area by the folks at UVic. This work include scholarly research, development of classroom teaching, experiential learning, working with Indigenous communities, and production of public education resources. And these various strands reinforce each other and support what is potentially quite a transformative approach to Indigenous legal education.

Mike’s insightfulness and knowledge

I laughed out loud when I read Mike Hosking’s rant about Waikato-Tainui’s treaty claim to part of the Auckland region. It was his usual uninformed, reactionary nonsense. You know, fact-free – top to bottom, left to right.

A week or so back, you might remember he had a piece about needing to wrap up the whole Treaty of Waitangi process. I don’t, but I think I get the idea.

You’d hope someone who was making public comment on the Treaty claims and settlement process might have at least tried to read something about it. Maybe even taken a look at a Waitangi Tribunal report or two. After all, the Tribunal is 40 years old. If you can’t, with 40 years’ worth of carefully researched Tribunal reports, work out that the value of Treaty settlements is miniscule compared to the value of land and resources that were wrongly taken from Māori, you’re asleep at your computer keyboard.

We need a deadline and we need to stick to it. The Crown should set a date when it will stop breaching the Treaty and start offering Treaty settlement redress that properly acknowledges the value that the Crown and the New Zealand public continue to receive from Treaty breaches (in other words, value that comes at the expense of Māori). We’ve talked about deadlines before, but it is usually been in the context of extinguishing Māori rights contrary to any principle of justice because people think waiting 40 years to resolve these issues is a long time. Try waiting 175 years.

The commitment that New Zealanders – Māori and non-Māori alike – have made to finding a resolution to long-standing grievances is laudable. No one doubts that wrongs were committed. The evidence is incontrovertible. No one doubts some sort of recompense needed to be sorted. Principles of justice usually require that when your property is taken either your property or compensation to the value of that property be returned to you. We are lucky that Māori have accepted that settlements comprising substantially less than the value of their land, along with apologies and other components of modern settlements, will be deemed to have put right a lot of wrongs.

So, are the over-excited comments of one media blowhard about Tainui ‘claiming Auckland’ worth worrying about? Well, asserting that the Crown’s generosity is being taken advantage of in the Treaty settlement process is, to be blunt, taking the piss. And someone needs to call him on it.

These opinions only get legs because they’re not seen for what they are – farcical. Just because you say it out loud, on multiple media platforms, doesn’t make it real, or plausible, or sensible, or in this case even worth listening to.

What I have noticed over the years with the Treaty process is that by indulging the mad end of the spectrum (think Don Brash at Orewa), you open the door for other racists.

I think back to the asset sales of election year. Most people expect that the Government will act within the law. If the law requires the Government to act consistently with Treaty principles when selling public assets, hey guess what? The Government cannot just say “We’re the Government, and if we want to sell something, we can.” The Government must comply with the law. Most people would say that was a good thing. But then Mike Hosking isn’t most people. Clearly. Because most people wouldn’t describe a case that went all the way to the Supreme Court as “Day one, their case fell over”. I could go into a lot more detail explaining the significance of the Supreme Court decision in the context of a long line of cases in which our higher courts have elaborated on the Crown’s legal obligations with respect to Treaty principles, but Mike doesn’t appear to be interested in either understanding or explaining issues accurately. What a waste of time.

Mike also doesn’t seem to have much of a sense of irony. Otherwise, how could he claim, with a straight face, that the problem is that those genuinely looking for solutions have been swamped by the headline grabbers and the opportunists? I know how you feel, Mike.

Good will only goes so far. If Treaty settlements are to be durable, they must be underpinned by principles of justice. All New Zealanders should demand nothing less. Resolution of these claims will require give and take on both sides. It will also require a genuine desire to understand the complexity of the substantive issues and the process for settling historical claims. I’m pleased to say that most New Zealanders I know are ready and willing for this challenge. They want to understand. They want to be part of a process of putting things right. They want to treat people with respect and be treated respectfully by others. They’re well beyond the limits to which Mike’s narrow thinking constrains him. And by quite some margin.

Trans-Pacific Partnership Agreement Claims before the Waitangi Tribunal

The Waitangi Tribunal recently heard arguments as to whether it ought to grant an urgent hearing of claims opposing the Crown signing the Trans-Pacific Partnership Agreement (TPPA). On 7 July 2015 the Chairperson of the Waitangi Tribunal appointed Judge Mike Doogan (Presiding Officer), Tania Simpson, David Cochrane, Sir Doug Kidd, and Sir Tamati Reedy as the panel to inquire into the TPPA claims and to determine, as a preliminary step, whether the claims ought to be granted an urgent hearing. Yesterday, the Tribunal released its decision declining an urgent hearing on the terms sought by the claimants but indicated that there was a good case for the Tribunal to grant urgency or priority to hearing these claims once the text of the TPPA is available.

The claimants include a number of prominent Māori individuals, such as Moana Jackson, Hone Harawira, Angeline Greensill, Papaarangi Reid, and Rikirangi Gage. Subsequent claims relating to the TPPA were lodged by other individuals and organisations, including the New Zealand Maori Council (though it now appears that the Council is dealing with some internal issues in relation to their claim). The claimants’ key concerns are that the Crown’s actions in relation to the TPPA have failed to recognise tino rangatiratanga as guaranteed under the Treaty of Waitangi. Moreover, entering into the TPPA will constrain the Crown’s ability to give effect to its obligations under the Treaty. In short, there is a conflict between Māori rights and the TPPA and the Crown has not meaningfully consulted with Māori in order to understand Māori views or be fully informed of how Māori rights will be affected. The claimants have also expressed concern about the secrecy with which the Crown has approached the TPPA negotiations which has left Māori “unable to exercise their rights under te Tiriti to engage in an informed way in decision-making on the TPPA”. The Statement of Claim alleges that the proposed TPPA will cause the claimants prejudice including loss of Māori intellectual property rights; the ability for foreign states and investors to challenge Crown policies that aim to fulfill Treaty obligations; and constraining access to affordable medicines, and prejudicial effects on Māori forestry rights and ability to exercise kaitiakitanga.

In his memorandum-directions of 14 July 2015, Judge Doogan identified two issues that make it difficult for the Tribunal to determine whether to grant an urgent hearing of these claims. The first is the secrecy of the TPPA negotiations and the fact that the text of the TPPA will not become publicly available until its terms have been agreed by the parties. The second issue is the timing of the TPPA negotiations. TPPA trade ministers met from 28-31 July 2015 in Hawai’i and it was originally envisaged that negotiations could be concluded in late July-early August 2015. The Tribunal resisted recommending that the Crown delay negotiations to enable a Tribunal inquiry to take place but it is clear that the Tribunal would not have been able to substantively inquire into and report on the complex issues involved in these claims within a matter of a few weeks. As it turned out, the TPPA negotiations in Hawai’i could not reach agreement on a number of substantive issues and so it appears the TPPA timeline will inevitably be delayed in any case.

When hearing arguments on the matter of urgency, Tribunal members questioned the Crown about their consultation with Māori and how this could be done effectively given the secrecy surrounding the TPPA negotiations. The lack of transparency has also been an issue of concern for other New Zealanders who remain wary about the TPPA.

Dealing with the practical issues of both timing and secrecy feature prominently in the Tribunal’s decision on the matter of urgency released yesterday. The Tribunal reiterated its concern about the late stage at which the claims were filed when the deficiencies in the Crown process that were alleged were evident much earlier. Confirming its preliminary view, the Tribunal noted:

Even allowing for the fact that an assessment of prejudice is inherently difficult given the secrecy of the TPP negotiations, we are not convinced that there is a proper basis to intervene, or attempt to intervene and exercise what limited recommendatory or inquiry powers we have at this final stage of the TPP negotiations.

However, that was not the end of the matter. The Tribunal remained concerned that Māori would be prejducially affected by New Zealand entering into the TPPA but noted that the secrecy of the TPPA negotiations made it impossible to assess the nature and extent of any prejudice at this stage. The Crown had rejected the suggestion that an independent lawyer be appointed to review the Treaty exception clause in the TPPA which might have gone some way to assuring the claimants that Māori interests are being protected. So, the Tribunal concluded, there are still outstanding issues to be addressed and they can be properly considered as soon as the text of the TPPA is made available. The two key issues that the Tribunal identified are:

(a) whether or not the Treaty of Waitangi exception clause is indeed the effective protection of Maori interests it is said to be; and

(b) what Maori engagement and input is now required over steps needed to ratify the TPPA (including by way of legislation and/or changes to Government policies that may affect Maori).

It may be that if the final stages of the TPPA negotiations are pushed out beyond the 2016 US Presidential election that broader issues could be considered in the inquiry. The Tribunal indicated that it would issue further directions once the TPPA timeframes become clearer, but that in principle, it would appear appropriate for a hearing of these claims to proceed as soon as possible after the text of the TPPA is made available.

Te Ture Whenua Māori Reform

The central piece of legislation governing Māori land, Te Ture Whenua Māori Act 1993, has, over the last couple of years, been the subject of a major review. A discussion document was produced in May 2013 with a final report from an expert panel released in May 2014. After a period of consultation (and also following the 2014 General Election and a change of ministerial portfolios, including the appointment of a new Minister of Māori Development), a ministerial advisory group was appointed in February 2015 to progress the high-level reforms recommended by the expert panel towards the introduction of a bill to replace Te Ture Whenua Māori. At the end of May 2015 a draft bill (or an ‘exposure bill’) was released along with a consultation document. Consultation hui began almost immediately after that and submissions were originally due by 3 July 2015. That deadline was subsequently extended to 7 August 2015.

The Bill is complex and provides a radical overhaul of Māori land law rather than simply being directed at fixing some of the problematic issues of Te Ture Whenua Māori. I do not intend to provide a detailed analysis of the Bill here, but some striking features include:

– the Bill significantly reduces the role of the Māori Land Court, which may be supported by some Māori land owners, but will be of concern to others;

– the purpose of the Bill weakens the emphasis on rentention of Māori land in the hands of its owners that is currently present in the Act; and

– the Bill introduces a raft of new terms and definitions that one imagines will create a period of some uncertainty as the interpretation and application of those terms are tested in the courts.

I would make just a couple of further points in relation to the consulation process. First, the consultation document that was released with the draft bill is pure PR spin. It is not at all helpful in understanding how the bill will change the legislation governing Māori land. In fact, I would go so far as to say that reading the consultation document is actually an obstacle to understanding those changes. Also, it is difficult to see how any useful feedback on a bill that is the size and complexity of this one could be gleaned from consultation hui that took place largely before Māori communities had an opportunity to get to grips with the detail of the bill and have internal discussions about the implications of the proposed changes.

As noted above, submissions now close on 7 August 2015. The Minister has stated that he is aiming to introduce a bill in to Parliament before the end of the year.

UPDATE: The Minister has now announced that he “intends to allow for more time to develop the Ture Whenua Māori Bill within an expanded work programme” with the aim of introducing a bill into the House early next year.

Year 175

The past twelve months represent the 175th year in the life of the Treaty of Waitangi. There has been movement on a number of fronts over the last year that has ultimately suggested some very interesting directions in which the Treaty partnership is growing.

Although I recently argued that we should not limit ourselves to thinking about the Treaty as being only relevant to the settlement of historical claims, a number of interesting developments have arisen out of that context over the last year.

One of most significant developments in the Treaty settlement space was the enactment of legislation to give effect to aspects of the Tūhoe settlement. The Tūhoe Claims Settlement Act 2014 and the Te Urewera Act 2014 were both enacted in July last year. There are a number of notable aspects to this settlement, not least the new governance arrangements for Te Urewera. Further details about the key elements of this settlement can be found in the Māori Law Review’s special issue on the subject.

The Waitangi Tribunal Te Urewera report is itself an important part of the context of the Tūhoe settlement and the fifth part of that report, focusing on issues relating to Lake Waikaremoana, was released in December. This was one of a number of significant Tribunal reports released towards the end of 2014. Others were the reports on:

The report on Stage 1 of the Te Paparahi o te Raki Inquiry undertook a detailed analysis of the meaning of He Whakaputanga (the 1835 Declaration of Independence) and Te Tiriti, as it would have been understood by those in the North in 1840. As I noted at the time of the report’s release, the Tribunal’s central finding was that the rangatira who signed the Treaty of Waitangi in February 1840 did not cede their sovereignty by doing so.

The Tribunal’s report on the Māori Community Development Act review, Whaia te Mana Motuhake / In Pursuit of Mana Motuhake, takes up the discussion of tino rangatiratanga in a 20th and 21st century context and also connects the Treaty to a wider discussion of international indigenous rights. If Te Paparahi o te Raki was the Tribunal’s most comprehensive consideration of the issue of sovereignty and the Treaty’s relationship with He Whakaputanga, then Whaia te Mana Motuhake is its most comprehensive engagement with international indigenous rights, giving particular consideration to the relationship between the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In this report the Tribunal identifies specific articles of the UNDRIP that support various Treaty principles and assist our understanding of how those Treaty principles ought to apply.

Indigenous rights at an international level were in the spotlight at the UN this year with the World Conference on Indigenous Peoples (WCIP) being held as a High Level Plenary Meeting of the General Assembly in New York in September 2014. As I noted in a previous post, one of the key elements of the WCIP was the adoption by the General Assembly of an outcome document that commits member states and UN bodies to develop mechanisms for the practical implementation of the rights of indigenous peoples. As the Tribunal’s approach in Whaia te Mana Motuhake illustrates, these international developments are becoming increasingly important to understanding the application of the Treaty and the nature of the Treaty relationship.

While the New Zealand Māori Council was central to the Tribunal’s report Whaia Te Mana Motuhake (both as claimant and, at least in part, as the subject of the claim), the Council was also continuing to pursue issues around water rights and, in particular, giving expression to Māori water rights. The Council has recently proposed a framework for water policy that includes the establishment of an independent commission that would:

  • monitor the water take levels, set water prices and allocate water use rights through a mechanism to be determined by it
  • deal with all water bodies including aquifers and geothermal
  • use funds to reclaim water consents; undertake research; monitor water use; foster water storage and reticulation projects; and implement pollution reduction and environmental restoration programs
  • allocate a proportion of revenues to Māori in recognition of the Māori proprietary interest and taking account of previous non-recognition. The funds allocated to Māori shall be applied for the particular needs of Māori in relation to water supplies for marae, papakainga, and general Māori housing, to engage Māori in the restoration of customary waterways and to enable Māori to develop commercial operations utilising water.

It appears that water is going to very much be part of a continuing conversation between Treaty partners as we mark the 175th anniversary of the signing of the Treaty at Waitangi and move into the 176th year in the life of the Treaty partnership.