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It’s Time for a Legal Evolution

Tansi Nîtôtemtik,


As my time on this blog comes to an end, I can’t help but think about the place for white settler lawyers in the process of reconciliation.


I came to law school wanting to learn more about how I can create change. I wanted to learn arguments to make Canada’s colonial laws more just and fairer for Indigenous peoples.


I’m now convinced that we need a legal evolution.


Photo Credit: Philippe Johnson


I now realize that it’s time for the Canadian state to start really recognizing the sovereignty of Indigenous laws and polities.


At the same time, I’m also left with more questions than answers regarding what role white settler lawyers should play in this evolution. But that’s ok.


Reconciliation should be uncomfortable.


Reconciliation should be hard.


Reconciliation starts with truth, and sometimes the truth hurts.


My biases as a settler might mean that I have bad ideas. But that’s ok. We all make mistakes.


Reconciliation is a process.


After having the time and privilege to read most of the Truth and Reconciliation Commission’s (TRC) report and learning more about Indigenous laws in law school, I’ve realized there is much more critical work to be done.


We need a legal evolution.


Photo Credit: Philippe Johnson


Nearly all of Canada’s Aboriginal laws are based on the racist doctrine of discovery.[1]


The Pope “rescinded” this genocidal policy just last week. Still, it remains the foundation for our laws in Canada and allows courts to justify ignoring the sovereignty of Indigenous laws today.[2]


The TRC calls for an end to legal strategies that rely on the racist doctrine of discovery.[3]


The TRC is right. It’s time for a legal evolution.


It’s time for colonial law to let go of legal tests like Van der Peet, Sparrow and Pamajewon and their racist foundations atop the doctrine of discovery.


The idea of respecting Indigenous laws in our courts is not new.[4]


We can, for example, recognize the inherent right of self-government without referencing Van der Peet, like the Quebec Court of Appeal did in 2022.[5] While not perfect, it’s a step forward.


I know this now thanks to this blog, other classes, and my amazing colleagues and professors.


I know little about Indigenous laws, but at least now I know something. I’m now committed to learning.


I’m also committed to doing what I can to see Indigenous laws recognized as laws by what is now Canada.


Do I know how to do that? No. Not really.


But that’s ok.


If reconciliation felt easy, I’d be doing it wrong.


Should I be the one doing this work? Good question.


The Author with Chief Allan Adam (Athabasca Chipewyan First Nation) on Lake Athabasca.


I plan to keep working with Indigenous communities in my law practice. However, the idea of making a living off trying to fix the harm my ancestors did sits uneasily in my stomach. I’ll have some bad ideas. But that’s ok. This isn’t easy work.


All I know is that my journey into politics, combined with a small handful of law school classes and the guidance of some wise people, has started me on a path. I plan to see where this path leads. I look forward to meeting others like you, dear reader, along the way.


Thank you so much for reading! Until we meet again.


Signing off,

Philippe Johnson

Reconcili-ACTION YEG


[1] See Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15 at para 193 [Saik’uz].

[2] See Nicole Winfield, “Indigenous leaders hope Vatican’s repudiation of oppressive colonial concepts leads to real change”, CBC News (30 March 2023), online: <www.cbc.ca> [https://perma.cc/5XYM-PKST]; see also Larry Chartrand, “The Story in Aboriginal Law and Aboriginal Law in the Story: A Metis Professor’s Journey”, (2010) 50 Supreme Court Law Review 89.

[3] Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission of Canada: Calls to Action” (2015) at 5, online(pdf): National Centre for Truth and Reconciliation <www.nctr.ca> [https://perma.cc/K38W-UGKZ] [TRC].

[4] Connolly v Woolrich, [1867], 1 CNLC 70 (Que. Sup. Ct.).

[5] Reference re Renvoi à la Cour d’appel du Québec relative à la Loi concernant les enfants, les jeune et les famille des Premières Nations, des Inuit et des Métis, 2022 QCCA 185.

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