Truth and Reconciliation in the Legal Profession: A Primer on How to Be a Better Ally Regardless of Your Practice Area

  • October 21, 2022
  • Karlie Nordstrom and Leslie Anne St. Amour

On September 30, 2022, in recognition of the National Day for Truth and Reconciliation, Leslie Anne St. Amour organized a webinar titled Reconciliation in the Legal Profession. The webinar consisted of a panel discussion between us (Leslie Anne and Karlie) and Derek James Mastin, which was moderated by Erin Durant (lawyer at Durant Barristers). The event was accredited by the Law Society of Ontario for 1.5 Equity, Diversity, and Inclusion Professionalism Hours, and the recording is available for viewing via the password “September30”. Readers who access the recording are encouraged to donate to Aboriginal Legal Services to support the organization’s important mandate.

During the event, we shared some insights on a range of questions surrounding truth and reconciliation in the legal profession, to equip legal professionals in all practice areas with the knowledge necessary to play a more active role in truth and reconciliation. This article summarizes some of the key takeaways. 

Every legal professional and law firm has a role to play in advancing truth and reconciliation.

Regardless of your area of practice, you belong to a profession that has played a significant role in the historical and ongoing colonization of Turtle Island, and which continues to disproportionately harm and exclude Indigenous peoples. This truth must be acknowledged before we can begin to move toward reconciliation. And while your role in that reconciliation might look different depending on where you fit into the profession, we all have a role to play. Maybe yours will be in recruiting and retaining Indigenous talent, contributing time and capital to Indigenous organizations, or helping corporate clients navigate their relationships with First Nations in a more collaborative and culturally competent way. Take the time to consider the particular skills and resources you have to offer, and develop your action plan accordingly.

Terminology can be complicated, but it is important.

Aboriginal law refers to the laws of the Canadian state which are concerned with Indigenous people. Conversely, Indigenous law refers to the legal orders of Indigenous Nations. Some words which are generally considered offensive and unacceptable for common use, such as Indian, continue to hold legal meaning in Aboriginal law. Many First Nations prefer to be referred to as Nations, rather than as a “band,” although the concept of bands continues to exist within Canadian legislation. Finally, while Indigenous is generally the preferred umbrella term when referring to First Nations, Métis, and Inuit peoples collectively, it is typically considered a best practice to use more precise language when speaking about a particular Indigenous person, group, or community. When in doubt, ask the person or community how they would prefer to be referred to.

Don’t assume you have no Indigenous colleagues or clients.

Your clients and colleagues will not always disclose their Indigeneity to you, and they are not obligated to do so. Truth, reconciliation, anti-racism, and cultural competency should be considered in everything that you do, not just in circumstances when they are of obvious relevance.

Be thoughtful at all stages of the process when recruiting, hiring, and retaining Indigenous talent.

Indigenous candidates have a lot to offer, including and beyond their Indigeneity. When interviewing candidates, be careful not to reduce them to any one part of their identity or experience. Don’t make assumptions based on identity (not all Indigenous candidates are interested in Aboriginal law), and be prepared to rethink things within your organization if you want to retain a diverse talent pool. Part of bringing Indigenous people to the table is listening and responding to their perspectives even, and perhaps especially, when they go against the status quo. Take time to ensure that your organization’s policies, practices and culture are conducive to ensuring Indigenous colleagues are supported, seen, and heard throughout the entire employment relationship, not just during recruitment.

Cultural competency is key when working with Indigenous clients.

It is important to remember that the realities of many Indigenous communities differ from those in urban centres. Practices like sending documents through an online download link can be inappropriate when sufficient internet access doesn’t exist. Understanding that Indigenous Nations have their own governance structures and worldviews, which may differ from what you are used to, is also crucial. Governance structures, worldviews, and legal orders may also differ from Nation to Nation, so be sure to spend time learning about the particular communities you work with. If you aren’t sure where to start, take advantage of existing resources like the Guide for Lawyers Working with Indigenous Peoples (as well as the 1st Supplement to the Guide), developed by the Advocate’s Society, the Indigenous Bar Association, and the Law Society of Ontario.

Indigenous people are subject to a unique and complex legal landscape – take the time to learn about it.

Indigenous people continue to be subject to ongoing games of jurisdictional hot potato and complex statutory landscapes. “Indians” and in many cases, Indigenous people broadly, are under federal jurisdiction. This results in Indigenous people having to navigate different healthcare systems, child welfare systems, and education systems than those which are relevant for non-Indigenous people. Statutes like the Indian Act also have serious implications on Indigenous people and economic development. For example, restrictions on the ability to register a security interest against property situated on reserve can make it difficult for Indigenous people to access financing. It is important to recognize and understand these complexities when dealing with legal issues related to Indigenous people.

Advancing reconciliation as a member of the legal profession means acknowledging harms, pursuing change, and embracing legal pluralism.

Your role in reconciliation begins with acknowledging the historical and ongoing harms caused by the colonial legal regime. But being a member of this profession is also a position of immense privilege. Honour that by recognizing the gaps in our current system, and pushing for changes that will ensure the law serves Indigenous people better moving forward. Finally, embrace legal pluralism. Whether you are knowledgeable about them or not, Turtle Island is home to many diverse Nations and communities, each with their own complex legal orders and traditions. Recognizing the legitimacy of Indigenous laws is a necessary part of reconciliation in the legal profession.

Be thoughtful about the media you consume when educating yourself on the issues facing Indigenous peoples.

Indigenous people are not a monolith, and you are likely to encounter conflicting perspectives. Embrace these complexities, and approach them with humility. Engage with multiple Indigenous sources when possible, and try to understand what is motivating the differences in perspective. Be prepared to get things wrong and remain open to adjusting your opinions when you encounter new information.

If you or your organization are interested in incorporating territory acknowledgments in your events or meetings, take the time to make them meaningful.

While there is no monolithic answer for how Indigenous people will react to a territory acknowledgement, there are a few guidelines to keep in mind if you choose to do one. The more personalized the acknowledgement, the better. Incorporate tangible action(s) whenever possible. If someone stole your car and passed it down in their family for generations, but ensured that before any of them used it, they said “I’d like to acknowledge that this car is your car,” that probably wouldn’t make you feel much better about the fact that your car was stolen. Try to connect the territory acknowledgment to the subject matter of the event or meeting, and take things further than just listing the Indigenous nations and communities who call the land home. Talk about your own relationship to the land, how you plan on being a responsible custodian of the land, and how you plan to uplift and support Indigenous people.

Compensate Indigenous people for their time and labour.

There are already a lot of great resources that you can use to educate yourself on the issues surrounding truth and reconciliation. However, there will likely be times when you want or need to reach out to Indigenous people to participate in speaking engagements or lead training sessions. Approach these requests with an understanding that this work involves a lot of emotional labour, and always compensate people accordingly.

About the authors

Karlie Nordstrom is of mixed Métis and Swedish ancestry from Treaty 6 territory in Saskatchewan. She recently graduated from the University of Toronto Faculty of Law, and is currently articling at Aird & Berlis LLP. She is also a board member at Aboriginal Legal Services.

Leslie Anne St. Amour is of mixed Algonquin and settler heritage from unceded Algonquin territory in Eastern Ontario. She is an Associate with Durant Barristers and has been a board member at Aboriginal Legal Services since 2018.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.