Anti-Indigenous discrimination in the legal system: points to consider for lawyers
April 30, 2021
Anti-Indigenous discrimination remains a problem in Canada, across many sectors and regions.
Courts, law firms, and legal departments are not immune to this issue. I recently came across a video project, But I was wearing a suit, in which Indigenous lawyers speak about discrimination and racism in the legal system. The video shows that even Indigenous lawyers face biases from their colleagues, sometimes being treated as non-lawyers.
But we lawyers should be at the forefront of addressing anti-Indigenous discrimination. We should because we deal with justice, and discrimination is unjust.
And if that isn’t enough, the Truth and Reconciliation Commission of Canada urged us to in its 2015 report’s calls to action. Point #27 calls on lawyers to receive appropriate cultural competency training, including on the history and legacy of residential schools, and to acquire skills-based training for intercultural competency.
Lawyers who practice Indigenous law or have Indigenous clients should be especially aware. The Law Society of Ontario’s Rules of Professional Conduct require lawyers to be competent in the area of law they practice. You may violate this rule if you deal with Indigenous clients and matters but don’t understand relevant cultural nuances and the Indigenous historical context.
Here are some points to consider:
- There is no one Indigenous culture – Indigenous Canadians comprise many tribes, nations, and peoples, speaking more than 70 languages. Lawyers should learn more about their client’s particular community and language. If your client needs an interpreter, for example, make sure the interpreter speaks with your client before a court appearance to ensure that they understand each other’s dialect.
- The conciliatory nature of Indigenous legal systems – Indigenous conflict resolution systems are often cooperative and conciliatory. This can stand at odds with an adversarial legal system. Be mindful of Indigenous clients’ cultural values and be ready to explain the legal system and the need for lawyers.
- There may be differences in body language – For example, many Indigenous cultures consider prolonged eye contact to be rude, particularly between a young person and an elder. Be flexible in your approach with clients and be careful not to jump to conclusions.
- Different types of evidence – Indigenous cultures often favour oral histories to written ones. Court cases have included oral historical accounts as evidence, particularly in relation to land claims and treaties. Make sure that you are not overlooking key evidence by only emphasizing documentary ones.
- Differing governance structures in Indigenous communities – Just as Indigenous cultures differ, so do governance structures. Be sure to identify who your client is. Is your client a person or a community/band council? If it is a council, you may want to learn about its history, geographical location, structure, decision making process, and obtain instructions about who you should report to.
As you can help address anti-Indigenous discrimination in the legal system through training and education, it may be a good idea to hold a training session on the issue at your firm or workplace.