The Absence of Indigenous Legal Leaders: Québec’s ‘Viens Commission’ and Beyond

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The Viens commission, a two-year inquiry lead by the government of Québec into the treatment of Indigenous people in the province by public bodies, continues to make headlines as Indigenous community leaders and advocates testify as to the continued mistreatment and discrimination of the populations they represent. (Read my last Rights Watch blog post on the subject here).

The commission, sparked by the destruction of trust between Indigenous communities and provincial police following the events in Val-d’Or, is now in its 16th week of hearings.

Last month, the director of the Native Women’s Shelter of Montreal testified before the commission, denouncing the inquiry’s lack of Indigenous leaders. While about 21% of the commission’s staff is Indigenous, none of them belong to the legal department or play leading roles in the inquiry. The director of the Native Women’s Shelter stressed the importance of Indigenous witnesses seeing “someone in power who has lived a similar experience”.

Jacques Viens, the head of the commission, is a retired Superior Court judge, appointed in part for having dedicated 25 years of his career to the district of Abitibi, as well as practicing in Cree and Inuit communities. Chief counsel Christian Leblanc said it was difficult to incite experienced lawyers to move to Val-d’Or for the duration of the inquiry and that he only hired counsel with experience in Indigenous communities. He underscored the efforts made by the commission to make the hearings culturally appropriate.

There is precedent in Canada for Indigenous leadership of inquiries into Indigenous affairs. For instance, the Truth and Reconciliation Commission had 50% Indigenous staff, and two out of three of its commissioners were Indigenous.

Of course, efforts to appoint Indigenous leaders to legal and political positions are underscored by colonial realities in Canada. While Indigenous peoples are overrepresented within the legal system, they are underrepresented in the legal profession and in law schools. Furthermore, education within law schools  has until very recently been characterized by a lack of in-depth study into Aboriginal and Indigenous law and Indigenous issues.  “I don’t think … a non-Indigenous person coming through a standard legal education in Canada comes away with a very good understanding of the Indigenous interactions with the justice system or the Indigenous perspective,” said Tom McMahon, who served as executive secretary to the Aboriginal Justice Inquiry of Manitoba.

The National Household Survey from 2011 showed that about 9.8% of the Indigenous population aged 25 to 64 had a university education at the bachelor level or above, compared to the 26.5% of the non-Indigenous population of the same age. In the province of Québec, 9.6% of Indigenous people aged 25 to 64 had a university education at the bachelor level or above, compared to 23.5% for non-Indigenous people.

A Law Times survey of law schools in Southern Ontario indicate that a total of 139 law students registered between 2011 and 2016 self-identify as Indigenous. For comparison, note that law schools in Southern Ontario accept between 160 (Windsor) and 390 (Ottawa) law students each, per year.

The first dean of Lakehead’s law school, Angelique EagleWoman, says that the geographic locations of law schools in Ontario are a barrier to Indigenous applicants; before Lakehead University founded a law school in 2013, all of the province’s law schools were located in Southern Ontario, in medium to large city centres.

Law schools in other provinces have a better history of implementing measures to encourage Indigenous students to attend. The University of Saskatchewan’s Program of Legal Studies for Native People has helped more than 1,300 Indigenous students prepare for law school since it was founded in 1973, when there were a mere four aboriginal lawyers and five law students in the country, according to the PLSNP’s web site.

However, at the time of the Truth and Reconciliation Commission’s call to action in 2015, Lakehead University’s law school and the University of British Columbia’s Peter Allard School were the only two schools to have mandatory classes in Aboriginal law. More have followed suit since, instituting scholarships and affirmative action initiatves, mandatory and optional courses in Aboriginal and Indigenous law, hiring relevant professors, and creating research centres. The University of Victoria’s law school made headlines for creating the country’s first joint degree program in Canadian Common Law and Indigenous Legal Orders, to begin intake of students in September 2018.

It will take continued effort by law schools and governments to create incentives for Indigenous students to pursue law and politics, and to educate non-Indigenous law students in Indigenous legal culture and Aboriginal law. Eventually, we might hope to see Indigenous lawyers and other leaders at the helm of inquiries such as government of Québec’s Viens Commission.

This blog post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.