Law Society Mandatory Indigenous Training Controversy: Deficit Discourse in Action
This week, the blog examines the concept of deficit discourse and how we can move away from damage-centered narratives about Indigenous people towards what some have referred to as the desire-based approach.
As discussed in Monday’s blog, deficit discourse refers to disempowering patterns of thought, language and practice that characterize Indigenous people or issues they face in terms of deficiencies and failures.
The roots of deficit discourse come from racist attempts by early colonizers to address “the indigenous problem” by blaming Indigenous people for their condition without considering the impacts of occupation, colonization and genocide.
Today, damage-centred narratives continue to be reproduced by researchers, the media and others, albeit in less insidious ways.
Deficit discourse includes reports that recognize how the impacts of colonialism have led to deficits in communities, such as the overrepresentation of Indigenous people in the justice system, but stop short of identifying the strengths, wisdom and hope of Indigenous communities. Through a pattern of focusing on deficits, such reports lead to the continuation of a one-sided deficit narrative that pathologizes people and communities as “broken,” “ruined,” “depleted” or “hopeless.” While research or media reports documenting loss can sometimes be useful to bolster political demands or gain reparations in courtroom settings, they fail as a theory of change to achieve recognition of Indigenous human rights.
Damage-centered narratives cause harm by allowing oppression to singularly define people’s existence and by encouraging Indigenous people to see themselves as “damaged”. At the same time, damage-centered reports often end up submerging the colonial context by focusing so much on deficits. Such reports also overlook tools that communities have and wish to use to build healthy communities, which Canada routinely suppresses, such as Indigenous laws, making change seem unrealistic or even hopeless. Ultimately, damage-centered narratives that fail to recognize communities as more than broken and conquered become acts of aggression against Indigenous people.
On January 30, 2023, the CBC published a story concerning the shocking efforts of a group of Alberta lawyers to end mandatory continuing education for all lawyers on Indigenous cultural competency by the Law Society of Alberta. While I’m sure the reporter was well-intentioned, the story is an example of deficit discourse.
Photo source: https://www.lawsociety.ab.ca/lawyers-and-students/continuing-professional-development/indigenous-cultural-competency-education/
The CBC story interviews Indigenous defence lawyer Krysia Przepiorka for an explanation of why Indigenous cultural competency training should be mandatory. Przepiorka states that “[c]ultural competency is important because it helps … repair systemic biases and mend broken relationship and trust with Indigenous peoples and communities.” She goes on to say that “[w]e are not asking you to immerse yourself in our culture, we are asking you to understand what was taken away and the subsequent impacts that followed.”
In how it uses Przepiorka’s statements, the CBC story relies on the idea that communities are “broken” on account of that which has been “taken away” as justification for mandatory training and ends there. The story fails to identify justifications for mandatory training that are based on Indigenous peoples' wisdom, strength and desires.
By doing no more than recognizing communities as broken, the CBC story reinforces damage-centered narratives that continue to pathologize Indigenous communities. These narratives aren’t unique to the CBC, they are prevalent, and in many cases worse, in other media.
The CBC story could have recognized that an essential rationale for continuing education of lawyers includes that Indigenous communities want every lawyer in Alberta to know that they have, and have always had, their own laws that worked well enough for millennia. These laws continue to be suppressed by Canada in violation of their human rights.
The right to self-determination for Indigenous people, and with it the right to self-government, is recognized under Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP was affirmed as a universal human rights instrument with application in Canadian law by the federal government in 2021. All lawyers should be responsible for understanding how this right applies to their legal practice.
CBC could also have recognized that Indigenous communities desire to be treated ethically by lawyers in Alberta. To be treated ethically is to be free from the influence of harmful stereotypes. This includes stereotypes that falsely believe that Indigenous people didn’t have “laws” pre-contact, or that these laws have somehow been “lost” to the present or are too “damaged” to be useful in our current legal system. These remain stubborn myths in Canadian society that, no doubt, exist in the minds of some lawyers.
Cultural competency training is one step towards reconciliation. Is it essential not because Indigenous communities are damaged or broken. It is essential because it’s time every lawyer in Alberta understands that Indigenous people are demanding to be treated with dignity and have their human rights respected.
Until next time,
Team Reconcili-ACTION YEG
On Wednesday, February 8, 2023, from 12-1 pm, the Women’s Law Forum and Indigenous Law Students’ Association at the University of Alberta are holding a Deficit Discourse Presentation and Workshop for UofA law students. Sign up here: https://forms.gle/AuosfV1Ass3wAEYM7
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 See Eve Tuck, “Suspending Damage: A Letter to Communities” (2009) 79:3 Harvard Education Rev 409 at 416 [Tuck].
 See “Deficit Discourse and Aboriginal and Torres Strait Islander Health Policy” (May 2018) at 1, online (pdf): The Lowitja Institute <www.lowitja.org.au> [https://perma.cc/K697-EXLQ].
 See Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books, 1999) at 91; see also Tuck, supra note 1 at 415.
 Tuck, supra note 1 at 413, 416.
 Ibid at 409, 413.
 Ibid at 413, 415.
 Ibid at 413, 415.
 Ibid at 415.
 Ibid at 415.
 Ibid at 416.
 Meghan Grant, “Mandatory Indigenous course at risk after group of lawyers aims to change Law Society rule”, CBC (30 January 2023), online: <www.cbc.ca> [https://perma.cc/E54A-PQ48].
 Tuck, supra note 1 at 413.
 See Hadley Friedland, “Navigating Through Narratives of Despair: Making Space for the Cree Reasonable Person in the Canadian Justice System” (2016) 67 UNBLG 270 at 274 [Friedland].
 See Larry Chartrand, “Metis Constitutional Law Issues”, in The Oxford Handbook of the Canadian Constitution, edited by Peter Oliver, et al (Oxford University Press, 2017).
 United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c14.
 Friedland, supra note 13 at 276.