PROJECTS AND FEATURED WORK

Indigenous Citizenship

The IBA is committed to creating space for Indigenous Nations to develop and implement their own citizenship systems. This work is in response to Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration). In 2019, the IBA completed a research paper relating to the collaborative process and issues relating to Bill S-3. The paper defined Indigenous citizenship as it relates to UNDRIP, the Canadian Human Rights Act, and the Canadian Charter of Rights and Freedoms. Citizenship practices among First Nations have been drastically altered from models of inclusive citizenship to exclusive and gendered methods of membership. Membership exclusivity has been entrenched along lines of descent, cultural knowledge, residency, blood quantum and ethnicity. Exclusion of our own people has been the basis of the gender, sexual orientation and racial discrimination within the Indian Act and the movement against this historical wrong must be a more inclusive and empowering direction. 

The paper provided for a path forward, which involved further pursuing the enforcement of anti-discrimination practices, subjecting Indigenous Nations to judicial review if their laws provide for restrictive citizenship practices, to name a few. The IBA seeks to continue this research and to understand what this may look like in practice. These imperative research findings have the potential to put a course of action into play to ensure gender based discrimination as a result of the Indian Act is eliminated.

Indigenous Justice

The purpose of this project is to engage with Indigenous peoples on a potential path forward for designing and implementing a national Indigenous Justice Strategy (the “Strategy”). The engagement will generally proceed in three phases. 

·       Pre-Engagement Planning 

The first phase involves the retention of an Indigenous Justice Strategy Engagement Coordinator, administrative staff (part-time), and two researchers (part-time) in order to form an Indigenous Justice Reform Secretariat. The Secretariat will identify priorities and form recommendations for engagement with Indigenous stakeholders towards defining and implementing a comprehensive Strategy. The IBA will create and maintain relationships with Indigenous Peoples in order to develop the Strategy, as well as to assess the progress and effectiveness of the undertaken engagements. The IBA will work with Indigenous peoples, including representatives from Indigenous governing bodies and within the legal profession, as well as law societies to address systemic discrimination and Indigenous over-representation within the Canadian criminal justice system. At this stage, the IBA will research and identify proposals for reforming various policies, procedures, rules and regulations concerning Indigenous peoples within Canada’s justice system. The recommendations to come from the Secretariat will be informed by Indigenous law, Indigenous research methodologies, and the UNDRIP. 

·       Implementing Engagement 

At the implementing engagement phase, the Secretariat will seek to utilize an inclusive and intersectional approach towards partnership, particularly where concerned with Indigenous women, youth, and 2SLGBTQQIA+ persons. At this stage, the Secretariat will utilize both quantitative and qualitative data collection methods through Indigenous research methodologies. Using a two phased approach (data collection and community engagement/consultation), the Secretariat will have the opportunity to share an interim report with the Federal Government. 

·       Final Report 

Lastly, the Secretariat will then synthesize the results of the research into a Final Report which shall contain recommendations and steps for its implementation. Upon completion, the IBA seeks to distribute the conclusions at the national annual conference, as well as to interested law societies, universities, or other stakeholders across the country. 

Accessing Justice and Reconciliation

REVITALIZING INDIGENOUS LAWS

“How we see, understand and work with indigenous law depends on what we think law is and what our expectations of it are. Law is not separate from us. It is what we do, and law’s existence depends on our serious engagement with it. Indigenous law needs to interact critically with other legal orders and it needs to do so in a way that protects the integrity of each legal order.”

– Dr. Val Napoleon, LL.B., Ph.D., Academic Lead

About

In 2012, the University of Victoria’s Indigenous Law Research Unit, Indigenous Bar Association, and The Truth and Reconciliation Commission of Canada launched the “Accessing Justice and Reconciliation” project. We are very grateful to our funders at the Law Foundation of Ontario. Professor Val Napoleon is Academic Lead for the project as well as Law Foundation Professor of Aboriginal Justice and Governance at the University of Victoria, Faculty of Law.

PROJECT VISION AND GOALS

The overall vision for this project was to honour the internal strengths and resiliencies present in Indigenous societies, including the resources within these societies’ own legal traditions. The goal of the AJR Project was to better recognize how Indigenous societies used their own legal traditions to successfully deal with harms and conflicts between and within groups and to identify and articulate legal principles that could be accessed and applied today to work toward healthy and strong futures for communities.

At the heart of the AJR Project was a fundamental commitment to engage with Indigenous laws seriously as laws.

Partnerships

This project reflected only a small illustration of the broad diversity of Indigenous societies and communities across Canada.

Seven partnerships were formalized, representing six legal traditions. Partners submitted an expression of interest. From west to east, the representative legal traditions and partner communities were as follows:

LEGAL TRADITION - Coast Salish

PARTNER - Snuneymuxw First Nation, Tsleil-Waututh Nation

JUSTICE/WELLNESS PROGRAM - Social Development & Family Preservation Program, North Shore Restorative Justice Society

LEGAL TRADITION - Tsilhqot’in

PARTNER - Tsilhqot’in National Government

JUSTICE/WELLNESS PROGRAM - Culture and Customs Program

LEGAL TRADITION -Northern Secwepemc

PARTNER - T’ exelc Williams Lake Indian Band

JUSTICE/WELLNESS PROGRAM - Holistic Wellness Program

LEGAL TRADITION - Cree

PARTNER - Aseniwuche Winewak Nation

JUSTICE/WELLNESS PROGRAM - Mamowichihitowin Wellness Program

LEGAL TRADITION - Anishinabek

PARTNER - Chippewas of Nawash Unceded First Nation #27

JUSTICE/WELLNESS PROGRAM - Maadookii Senior’s Centre, Residential School Archives

LEGAL TRADITION - Mi’kmaq

PARTNER - Mi’kmaq Legal Services Network, Eskasoni

JUSTICE/WELLNESS PROGRAM - Mi’kmaq Legal Support Network

Anti-Racism and Multiculturalism

This anti-Indigenous racism in the legal profession project will address racism by using three methods – education and awareness; justice reform; and research. This Anti-Racism Strategy is expected to have the following outcomes: create relationships among organizations, communities and institutions to target racism; to effect systemic changes to Canada’s justice system, specifically, in the areas of police reform, correctional facilities and judicial appointments; and create an ongoing, permanent forum for addressing and preventing anti-racism in Canada’s legal institutions. 

·       Education and Awareness 

The main component for this method is the three-day national annual conference. The IBA will dedicate a conference stream to anti-racism and will expand the conference’s reach to both the legal profession and the public by including relevant portions of multimedia content on its website. On the day of the conference dedicated to students, the IBA will provide anti-racism training and will build allyship with Black law students. Further to the conference, the IBA will hold smaller regional panels and workshops to continue the work of the national conference. Finally, the IBA will address current and relevant justice initiatives and/or disputes to foster anti-discrimination with local and community specific solutions. 

·       Justice Reform 

As noted above, the IBA plans to advance a long-term national Indigenous Justice Strategy to achieve real and substantive law reform in Canada. The Strategy will address the crisis of racism, discrimination, and violence against Indigenous peoples in the justice system. The Strategy will complete specific justice reform activities, as well as demonstrate an advanced presence and influence on social media. In order to do so, the IBA will hire a communications consultant and will increase paid promotion of the IBA’s social media accounts. 

·       Research 

Through current and new partnerships with law schools, the IBA will amplify existing research on anti-Indigenous racism in justice. The IBA will create and support opportunities for Indigenous law students and academics to produce new research which supports the goal of anti-racism. In order to do so, the IBA will hire a part time project coordinator. 

Indigenous Judges in Canada

Independent Advisory Board for Supreme Court of Canada Judicial Appointments 

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (the “IAB”) is an independent and non-partisan body whose mandate is to provide non-binding, merit-based recommendations to the Prime Minister on Supreme Court of Canada (the “SCC”) appointments. It was established in 2016 and currently consists of eight members: 

Three members, at least two of whom are not advocates or barristers in a province or territory, nominated by the Minister of Justice; 

• A practising member in good standing of the bar of a province or territory, nominated by the Canadian Bar Association; 

• A practising member in good standing of the bar of a province or territory, nominated by the Federation of Law Societies of Canada; 

• A practising member in good standing of the bar of a province or territory, nominated by the Indigenous Bar Association; 

• A retired superior court judge, nominated by the Canadian Judicial Council; and  A legal scholar, nominated by the Council of Canadian Law Deans.

The inclusion of space for an IAB Board Member to be nominated by the IBA occurred in response to a formal letter sent to the Prime Minister and Attorney General of Canada in early 2021. The letter outlined the deplorable fact that there has never once been an Indigenous jurist of the SCC. This letter requested that there be Indigenous representation on the IAB for the selection of SCC justices, as well as a call for reforms to ensure the inclusion of Indigenous jurists among the SCC judiciary. 

Appointing an Indigenous jurist to the SCC 

Potential Indigenous SCC justice candidates have been making significant contributions to Canada’s legal system, yet have been historically excluded or dismissed from the process due to institutionalized racism. Aside from the fact that there have been several calls to more broadly include Indigenous Peoples in the legal system (such as the Royal Commission on Aboriginal Peoples, Final Report of the Truth and Reconciliation Commission of Canada, and the United Nations Declaration on the Rights of Indigenous Peoples), our legal system is multi-juridical, recognized and affirmed through the Constitution Act, 1982. Indigenous legal orders are protected under section 35(1) of the Constitution. Indigenous Peoples are the knowledge keepers of Indigenous law, and therefore, to secure a fair and balanced application of Indigenous law in our legal system, there must be an Indigenous person on the SCC judiciary. It is crucial for the ongoing health and development of Canada’s legal pluralism to incorporate the perspectives of Indigenous Peoples prominently in legal discourse at the highest level. 

One of the steps to support the appointment of an Indigenous SCC justice is to reimagine and reconfigure the administrative processes surrounding the appointments. Accordingly, the IBA argued that it is incumbent upon the Prime Minister to establish a permanent seat on the IAB. 

Indigenous Members on the IAB for SCC Judicial Appointments 

The eight IAB members of 2022 were responsible for identifying candidates to fill the SCC vacancy that arose when the Honourable Michael Moldaver retired in September 2022. This year marks the first time the IBA was able to nominate a member to the IAB and is pleased to congratulate Dave Nahwegahbow on his nomination and appointment.. 

David Nahwegahbow is the founding partner of the law firm Nahwegahbow Corbiere, which acts exclusively for First Nation individuals, communities, and organizations. He is Anishinaabe from the Whitefish River First Nation. He is the recipient of multiple awards, including the IBA’s Indigenous Peoples Counsel (IPC) designation, the National Aboriginal Achievement Award (now Indspire Awards) for Law and Justice, the Common Law Honour Society from the University of Ottawa, the Law Society of Ontario’s Law Society Medal, the Advocates’ Society Award of Justice, and the Lifetime Achievement Award from the Anishinabek Nation. He was nominated by the IBA. 

It is also important to mention that another Indigenous representative, Konrad Sioui, served on the IAB alongside Mr. Nahwegahbow. Mr. Sioui is the former Grand Chief of the Huron-Wendat Nation in Wendake, near Quebec City. Prior to serving as Grand Chief, he was the representative of the Assembly of First Nations in Geneva, from 1985 to 1992. He has been the Chairman of the Board of Directors of the Société de l’assurance automobile du Québec (SAAQ) since January 2021. He was nominated by the Minister of Justice and Attorney General of Canada. 

The IBA also wishes to extend a sincere thank you to Dr. Signa Daum Shanks for her extensive and contributory work in the legal system as it relates to Indigenous Peoples. Dr. Signa Daum Shanks, from the prairies, is trained as both a lawyer and historian. She has worked for various Crown governments, a national law firm, a national Indigenous organization, and various universities. Her research interests have included Indigenous governance and history, Canadian history, law and economics, game theory, legal history, and torts. She has published about various subjects, including the use of history as evidence, the slavery of Indigenous Peoples, learning about Indigenous methodology, insolvency law, the Canadian legal profession and its Indigenous members, and recent responses to the pandemic and First Nations communities. Dr. Signa Daum Shanks has dedicated a significant portion of her legal career to the betterment of Indigenous nations and for that, the IBA wishes to acknowledge her.

International Law and Indigenous Peoples Rights

UN Declaration on the Rights of Indigenous Peoples

The UN Declaration on the Rights of Indigenous Peoples (UN Declaration) was adopted by the UN General Assembly on September 13, 2007 after a long drafting and revision process which began in 1985.  The UN Declaration was created after the release of a report by José R. Martinez Cobo on the problem of discrimination, marginalization and exploitation suffered by Indigenous peoples worldwide.  With the involvement of many States and UN bodies in the drafting process, and Indigenous peoples in the negotiations, the final text of the UN Declaration ultimately addressed rights that already existed in international law, yet were often denied to Indigenous peoples.

This webpage seeks to provide information on the UN Declaration to raise awareness among Aboriginal communities and their leaders, the legal community, academics and broader Canadian society of the standards set out in the UN Declaration and how to apply these standards to potentially bring about social and legal change in Canada.

Documents

Publications on the Implementation of the United Nations Declaration on the Rights of Indigenous Peoples

• Members of the Indigenous Bar Association have been working closely with the Centre for International Governance Innovation on researching and developing innovative and thought-provoking ways in which the United Nations Declaration on the Rights of Indigenous Peoples can be implemented and elaborated upon in today’s modern legal landscape.  The Centre’s research in this area is ongoing and the publications to date are available on the Centre’s website, which can be accessed by following the link above.

Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook

• The IBA produced a handbook designed to give a basic understanding of the history of the UN Declaration and how it applies in Canada.  The handbook gives an introduction of some broad themes of rights recognized and protected in the UN Declaration, a basic description and analysis of what these rights can mean for Aboriginal people, and examples where various provisions of the UN Declaration have been implemented around the world.

Let’s Get on With It: Implementing the UN Declaration on the Rights of Indigenous Peoples

• This article, written by Brenda L. Gunn, discusses Canada’s announcement in 2010 that it would endorse the UN Declaration, and explores the significance of the Un Declaration for Indigenous people, communities and lawyers within Canada.

United Nations Declaration on the Rights of Indigenous Peoples

• This is an English PDF copy of the pocket size copy of the UN Declaration.  Hardcopies of the pocket size and poster size version of the UN Declaration are available by contacting Jennifer Preston [jennifer@quakerservice.ca].

Traditional Knowledge

Intellectual Property and the Governance of Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions: Fostering Innovation and Improving Lives

• The Centre for International Governance Innovation has undertaken a project to establish a research hub which will serve as a resource centre to policy research, analysis and assistance for the management of traditional knowledge, genetic resources and traditional cultural expressions.  The link above will direct you to the Centre’s webpage which explains the Centre’s traditional knowledge project.

Workshops

In the fall of 2011, the IBA hosted five half-day (approximately 3 hour) training workshops on the UN Declaration.  These workshops were set to be carried out in four different regional zones, including the Atlantic, Ontario, Prairie, and British Columbia regions.  The cities that were ultimately chosen were: Ottawa, ON (September 29), Halifax, NS (October 25), Winnipeg, MB (October 13 & November 3) and Vancouver, BC (November 10).   The workshops were developed to be geared at lawyers, educators, Aboriginal community leaders and human rights workers.  The workshops used a combination of lecture and discussion based methods to provide detailed information on the UN Declaration and the rights protected therein.  They also discussed how the UN Declaration fit within international and Canadian law and how to start using the UN Declaration in the participants’ own work.

Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples Powerpoint

• This is the power point presentation from the September 29, 2011 workshop held in Ottawa, Ontario.  It gives an introduction to international law, lists the relevant international instruments and bodies, discusses application of international law in Canada, and discusses some broad themes recognized and protected by the UN Declaration.

Implementing the United Nations Declaration on the Rights of Indigenous Peoples: Webinar

• This link provides access to an interactive webinar on the UN Declaration on August 8, 2011.  The Assembly of First Nations, Grand Council of the Crees (Eeyou Istchee), Union of BC Indian Chiefs, Amnesty International Canada and Canadian Friends Service Committee all partnered to present this web-based seminar.

International Bodies

Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

• The Expert Mechanism on the Rights of Indigenous Peoples’ mandate is to assist the Human Rights Council by providing thematic expertise and by making proposals to the Council pertaining to the rights of Indigenous peoples.  The EMRIP has been currently working on possible appropriate measures and implementation strategies in order to attain the goals of the UN Declaration.

Special Rapporteur on the rights of Indigenous Peoples

• The Special Rapporteur works in close cooperation with the UNPFII.  In fulfilling his mandate, the Special Rapporteur promotes good practices to implement international standards concerning the rights of Indigenous peoples (including the UN Declaration), reports of overall human rights situations of Indigenous peoples, addresses specific cases of alleged violations of the rights of Indigenous peoples, and  contributes to studies on the promotion and protection of the rights of Indigenous peoples.

United Nations Permanent Forum on Indigenous Issues (UNPFII)

The United Nations Permanent Forum on Indigenous Issues is the UN’s central coordinating body for matters relating to the concerns and rights of the world’s Indigenous peoples.  It is an advisory body to the Economic and Social Council (ECOSOC) and has a mandate to discuss Indigenous issues related to economic and social development, culture, the environment, education, health and human rights.  The UNPFII has discussed several themes relating to the UN Declaration in its work.

Canada’s Position

Aboriginal Affairs and Northern Development Canada (AANDC)
The following links on AANDC provide information on Canada’s position from the Draft UN Declarationleading up to Canada’s endorsement of the UN Declaration.

• Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples

• Update Paper: United Nations Declaration on the Rights of Indigenous Peoples

• Canada’s Position: United Nations Draft Declaration on the Rights of Indigenous Peoples

Resource Pages

DoCip – Indigenous Peoples’ Center for Documentation, Research and Information

• This website operates as a documentation and information center.  It originates in Switzerland, and offers a substantial amount of information, past and present, on Indigenous Peoples rights at the International level.

GÁLDU – Resource Centre for the Rights of Indigenous Peoples

• This website focuses on the rights of Indigenous Peoples, specifically on the Rights of the Indigenous Sami Peoples.  It originates in Norway, and offers short articles and updates on current events that involve the rights of Indigenous Peoples.

GÁLDU Publications:

The UN Declaration on the Rights of Indigenous Peoples – What made it possible?
The work and process beyond the final adoption

Assembly of First Nations (AFN)

• The Assembly of First Nations has dedicated a page to the implementation of the UN Declaration, which includes National Chief Shawn A-in-chut Atleo’s communiqué on Canada’s endorsement, a factsheet, flyer, backgrounder and press release.

Canadian Friends Service Committee (Quakers)

• The Canadian Friends Service Committee has dedicated a page to the UN Declaration, which provides a number of links to resources on the UN Declaration, including factsheets, joint statements and letters, and articles relating to the UN Declaration.

International Work Group for Indigenous Affairs (IWGIA)

• IWGIA operates to support Indigenous Peoples’ human rights by collaborating with Indigenous Peoples’ organizations, publishing works about issues affecting Indigenous Peoples and working to ensure that the situations of Indigenous Peoples do not go unheard.  In 2009, they published a very informative book that starts with the development of the UN Declaration and concludes with methods of its implementation.

IWGIA Publications:

Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples

Other International Work

In 1970, Canada ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (text available at: http://www2.ohchr.org/english/law/cerd.htm).  This human rights treaty obligates Canada to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races.”  In particular, Canada must “undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law.”

As part of its obligations under ICERD, Canada must report every 4 years indicating the measures they are taking to eliminate racial discrimination.  In February, 2012 the Indigenous Bar Association attended Canada’s review before the Committee on the Elimination of Racial Discrimination.

Canada’s Report to CERD & CERD’s concluding observations: http://www2.ohchr.org/english/bodies/cerd/cerds80.htm

IBA’s submission to CERD

Legislation Watch

The IBA is committed to the recognition, protection and enhancement of the rights of Indigenous peoples in Canada.  In order to allow the IBA to more effectively advocate on behalf of Indigenous peoples, we encourage our members to provide input and insight into any legislative or regulatory initiatives that may impact the rights  Indigenous peoples in Canada.  The participation of IBA members will enable the Board to fully utilize the IBA’s extensive network of Indigenous professionals, academics, and students to ensure that the development of legislation and regulations are carried out in a way which respects the rights of Indigenous peoples in Canada.

If you have any comments or suggestions with respect to the proposed federal or provincial legislation listed below, please click on the legislation to access a page containing a brief description of the legislation and to a link that will direct all of your comments to a representative of the IBA Board of Directors Legislation Committee.