Failing to make the Grade and How to Pass: Law School Responses to Call to Action #28.
Updated: Jan 27, 2022
Updated: January 27, 2022 with corrections.
Unlearning the victor’s narrative is challenging. It makes us question things. It’s uncomfortable. It also requires us to learn the replacement material.
How do we reconcile that what we were taught by trusted mentors, parents, teachers and academics, wasn’t necessarily true? What we have been taught was tainted by the victor’s lens, and it is ok to question it.
For decades, we have been governed by the victor’s version of law. The victor in Canada’s story are settlers, who formed various governments and drew new borders. Settlers have controlled the narrative since colonization. Now the time has come to question these narratives. It is time for Indigenous peoples’ stories to be told.
As many of our readers know, in 2015 the Truth and Reconciliation Commission released 94 Calls to Action aiming at repairing the relationship between Indigenous and non-Indigenous peoples in Canada. One of these Calls to Action addresses the legal education of law students across the nation and calls upon these law schools to educate all law students on issues involving Indigenous peoples.
More specifically, Call to Action #28 calls upon law schools to require all law students to take a course that teaches students about 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.
What the TRC is asking of Canadian law schools might seem insurmountable. However, there is hope. Some law schools have taken the TRC’s Call to Action #28 seriously, and have implemented a mandatory course for law students. Some universities are working on their response to Call to Action #28, however, there are far more law schools that are missing this mark and failing to implement a mandatory Indigenous course.
What's the current state of affairs?
The majority of law schools across Canada have mandatory first year classes where students learn the “basics” of law including course materials on contract law, constitutional law, and property law. At the University of Calgary, their mandatory first year classes mention (albeit in passing) that “aboriginal rights” are covered in Property Law and Constitutional Law. However, the degree of Indigenous content is not specified, and it is unclear what percentage of the course material constitutes Indigenous perspectives within each major course. This is common across Canadian law schools, and some law schools don’t even touch on Indigenous issues in first year courses - or at least the course descriptions don’t mention Indigenous elements.
As students move into their second and third years (also known as their upper years), they are offered an array of courses to choose from. Every law school has mandatory courses such as Administrative law, and Civil Litigation, however some law schools, do not require their students to take any Indigenous focused courses as part of their mandatory upper year course load.
Although there are some Indigenous courses available to upper year students, most law schools do not make this a mandatory element. Additionally, the number of Indigenous courses available for upper years to choose from is often limited due to the shortage of resources. *
Resources are finite, and Indigenous professors are in high demand. Some universities have an abundance of Indigenous professors and therefore can offer more Indigenous courses. Other universities however, are losing Indigenous professors to their competition or have not hired them at all and are therefore failing to provide a diverse legal education to their students and failing to meet the TRC Calls to Action.
It is possible to meet TRC Call to Action #28?
So, given this state of affairs, we must ask: when considering curriculum reform within law schools, what elements must be implemented to bring law school curriculum in line with the TRC Call to Action #28? Is it even possible to meet this requirement?
Yes. We know it is possible to meet the TRC Call to Action #28 because universities like the Universities of Alberta and Saskatchewan, as well as Osgoode Hall Law School are showing the rest of Canada, just how possible it is! These universities require students to complete an Indigenous course in order to graduate.** To facilitate this, these universities offer several courses to their students which are dedicated to various Indigenous issues. This is what I imagine the TRC meant when it called upon law schools to implement a required Indigenous course.
While there is good work going into meeting the TRC’s Calls to Action within some universities, it’s frustrating that we are nearly seven years out from the release of the TRC’s report and still far too many law schools are failing to make the grade.
It is time that law schools who have not yet implemented a mandatory Indigenous-based course step up and get the work done to implement such a small yet significant change. It is possible, and it is time.
Until next time,
Team ReconciliACTION YEG
*Please note, the original version of this post incorrectly reported that the University of Alberta Faculty of Law had only offered 2 Indigenous courses the 2021-2022 academic year when in fact it offered 4 Indigenous courses this year.
**Please note, the original version of this post incorrectly reported that the University of Alberta, Faculty of Law does not require upper years to complete an Indigenous based course when in fact the Law Faculty Council passed a resolution in November 2021 that requires students graduating in 2024 and beyond, to complete an Indigenous course.
 Truth and Reconciliation Commission of Canada, Calls to Action, (2015) online (pdf): <https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/calls_to_action_english2.pdf>.
 University of Calgary, “Course Descriptions” (January 20, 2016), online (pdf): University of Calgary <https://law.ucalgary.ca/sites/default/files/teams/2/400-level_coursedescriptions_jan-20-2016.pdf>. Please note that the course description does not capitalize the word Aboriginal, and is not an omission of this writer.
 University of Calgary, “Instructor Course Descriptions” (2021-2022), online (pdf): University of Calgary <https://law.ucalgary.ca/sites/default/files/Registration%20Docs/2021/Instructor%20Course%20Descriptions_Final_2021-2022.pdf>.
 University of Calgary, “Our JD Programs”, online: <https://law.ucalgary.ca/future-students/our-jd-programs/jd>.
 University of Alberta, “Law Faculty Council Policy Manual,” s.37.4.vii, online: <https://docs.google.com/document/d/1HtN6ad_zgbC2CaiVEBrMNVytJXxjD2NckFTbCSkIlrk/edit>; University of Saskatchewan, “Juris Doctor”, online: <https://programs.usask.ca/law/juris-doctor/index.php>.; Osgoode Hall Law School, “Degree Requirements”, online: <https://www.osgoode.yorku.ca/programs/juris-doctor/jd-program/degree-requirements/>.