[Music]

Voiceover: This is The Every Lawyer, presented by the Canadian Bar Association.

[Music] Tansi, bonjour, hello, every one. Welcome to Conversations with the President. I’m your host, Brad Regehr from Winnipeg, the Treaty 1 territory in the heartland of the Métis nation.

The Truth and Reconciliation Commission Report published in 2015 contained ninety four calls to action, things that needed to be done in order for reconciliation to take place.

In this episode, we’re going to discuss call to action number twenty seven, which is aimed at making sure practicing lawyers receive cultural competency training. There have been a lot of calls for this kind of training in law firms the past few years, as the idea that law firms were hiring more diverse candidates, but not making them feel included, gained traction.

The Law Society of British Columbia in 2019 decided to make cultural competency training mandatory. Earlier this year, the Alberta Law Society did the same. But what does cultural competence mean in the indigenous context?

My guests this episode are both very familiar with this question. Jennifer David of Chapleau Cree First Nation, is a communicator, planner and facilitator. She’s a senior consultant with NVision Insight Group and a member of the board there.

The CBA collaborated with NVision on The Path, a five-module series that increases awareness about the legacy of the Indian residential school system. The CBA has been offering The Path to members since May 2020, and the Alberta Law Society has made it mandatory.

My second guest is Michael McDonald Q.C., a member of the Peguis First Nation here in Manitoba, and co-chair of the BC Law Society’s Truth and Reconciliation Committee, that decided in 2019 to make cultural competency training mandatory for lawyers in the province.

He’s also an active member of the CBA’s Aboriginal Law Section, and a former director of the Indigenous Bar Association.

Jennifer, welcome to our podcast, Conversations with the President.

Jennifer David: Hello. Aanii, Wachay. (Introduction in Cree). I'm Inninew from Omushkego, so that - I said that my name is Jennifer David, I'm from the Chapleau Cree First Nation in Treaty Nine territory in northeastern Ontario, and I always acknowledge the land where I come from.

But I'm now joining you here. I’ve been a long-time visitor in Ottawa, where I acknowledge that I am on the unceded, unsurrendered territory of the Algonquin Anishinaabe nation. So hello.

Moderator: Thanks for joining us. Michael, welcome to the podcast.

Michael McDonald: Oh, good morning. Thanks for having me on, and I’m speaking to you from the unceded ancestral and unsurrendered territories of the Okanagan people in Sunnywell. It’s trying to be sunny Okanagan. And I'm a member of the Peguis First Nation and my mother hails from the Norway House Cree nation. So I'm in Manitoba. So yeah, good morning.

Brad Regehr: Thanks for joining us. So first we’re going to explore the idea of cultural competency, and Jennifer, I'm going to turn to you. What does that term, cultural competency, mean to you?

Jennifer David: Okay, thank you for giving me an opportunity to talk about it, because I don’t actually like that term. I know that it’s scattered throughout the TRC’s calls to action, but I kind of like to deconstruct that word a little bit.

Because first of all, when you say cultural competency, it implies that someone needs to be well-versed in another person’s culture, when in fact, what we should be talking about is intercultural.

And I don’t actually like the word competency either, because again, that word competency is, like, you know, I could be a competent cook or I could be a competent mechanic. But are you really competent in, you know, building relationships with indigenous peoples?

So we’ve sort of tossed around different words here at NVision, where we do offer a number of different courses and programs and workshops. And so we’ve sort of landed on intercultural intelligence. So indigenous intercultural intelligence, because what we’re trying to do is help people in building their relationships, so that they are more intelligent in their intercultural relationships.

And so I just don’t really like this term, cultural competency, and that’s why I use this other phrase instead.

Brad Regehr: Well, thanks for that, that’s very interesting. Mike, what do you think when you hear the term?

Michael McDonald: Oh, my goodness. I come at it as a solicitor. You know, when we draft agreements as a commercial lawyer, we generate definitions in agreements sometimes, especially the larger ones. We tend to get, sometimes, focused on – well, it’s very important to know exactly what a word or a phrase means. I agree that it’s not the perfect phrase.

I’ve heard cultural humility. I love the concept of indigenous intercultural intelligence. At the end of the day it’s really about what is the - what is the learning, or the material, or the training, or the interaction going to result in?

That’s, for me, what I prefer to focus on, having some experience working with our BC’s Law Society in our TRC Truth and Reconciliation working group and mandating cultural competency, and also doing the same thing within our firm. And then just working within the practice area for all these years.

Again, today it’s getting the material, the information, across and in a way that results in some enhanced intelligence criteria for [unintelligible 00:05:56] and competency.

Brad Regehr: So Michael, that’s interesting, because law societies seem to be agreeing that the idea that, what the TRC says, cultural competency training, is important. And I know that the Law Society of Alberta has recently made it mandatory for its members to take The Path, which the CBA started offering last May.

And then last year, you, Michael, were part of the decision to make cultural competency training mandatory for lawyers in BC. Can you tell me how the Law Society of BC came to that decision?

Michael McDonald: Well first, I wasn’t part of the decision. I'm not a bencher and wasn’t a bencher last year, and it’s ultimately a decision of the benchers of Law Society.

Having said that, it’s kind of a long-winded story, but as a Cree, I'm a born storyteller, so I’ll – [laughter] – I’ll try and paraphrase a story that I’ve told many times.

When it was first – when Call to Action 27 first came out, and it was a call to the Federation of Law Societies to mandate indigenous cultural competency for lawyers across Canada. Now, the law, or interaction between the law and administration of justice, and the legal profession intersect with so many other calls to action.

But the Law Society wanted to jump in it, so without any consultation or discussion with indigenous lawyers or indigenous people, they said, okay, well, let’s get at this. And so their education subcommittee said, we’ll make – if someone takes a couple of courses in aboriginal law, then that will count towards their two hours of mandatory professional ethics requirement.

And that was how they were going to meet that. And they invited myself – I was on the board of the Indigenous Bar Association at the time, and I was the treasurer, and another person was part of this CBA’s Aboriginal Lawyers’ Network.

We were invited to a benchers’ meeting to sit and listen, and they didn’t ask us to speak to it. They passed the resolution and then they had a break for coffee and asked me to – and thought we were going to pat them on the back, and it was quite the contrary.

And I said, well, for starters, the resolution doesn’t meet the purpose of what that call to action is, and secondly, isn't this how we got here in the first place, where non-indigenous people thought something was good and they didn’t ask or consider what indigenous people thought, or asked for their perspective?

You know, and maybe you're being well-meaning about it, but this is kind of how we get into trouble when we don’t communicate and talk, you know, and then the phrase [we can 00:08:49]. And so I was very upset.

And the incoming president at the time, David Crossin, and I spoke briefly, and I said, well, this is ridiculous. So – and probably a first time in the history of the Law Society perhaps, in the same day a resolution of the benchers was passed, and subsequently to that, in the same meeting, that same resolution was withdrawn.

[Laughter] And I refused to go back in the room. And fortunately, one of my clients, Chief [Stone] [unintelligible words 00:09:22] to speaking, but they were all assuming that McDonald was so upset that he refused to go back in the room.

And so I came back in the room, and they were already debating the withdrawal of the resolution, and so I was able to speak to it and be the good cop and say, you know –

And then suddenly we developed a Truth and Reconciliation Planning Group, and eventually it became a working group, a kind of constant working group, and it developed a reconciliation action plan. Not the best document in the world, but I was keen to get things moving, and then subsequently, I was the co-chair of that group last year.

And then at the time we thought, that the easiest thing here, the lowest-hanging fruit here is probably this mandatory cultural competency. But my goodness, it took over a year to get through, and it was difficult.

But it happened, and we were excited that it did happen. It’s not perfect, but it’s a start in the process of making better lawyers, actually, in my view.

Brad Regehr: Thanks for sharing that with us. You know, there are people who are going to be out there listening to this podcast, you know, going, I'm an educated person, I know my history, I know indigenous peoples in Canada have been poorly treated by the institutions in this country.

What more do they need to know? Jennifer, can I put this one to you?

Jennifer David: What more do they need to know? That’s an interesting question, because we’ve always learned, right, that history is written by the victors. So when you say what do we need to know, is that really the question we should be asking, you know, because every Canadian has so much to learn about indigenous history.

And when I was creating The Path, our cultural awareness courses, I was appalled by how little I knew. You know, again, I'm from northern Ontario; I can tell you, you know, Cree stories, and I can tell you about our relationship with the Anishinaabe and I can tell you about the lakes and rivers in that territory. But I knew almost nothing about the Inuit. I knew nothing about, for example, the history of Métis Scrip on the prairies.

So I think it’s not just, you know, non-indigenous people, but all of us. It behooves us to learn more about our own history in this country, and not just, you know, Canada’s two founding nations in English and French. One is the sort of indigenous underpinnings of this country.

And so these are things we all should have learned in high school, and I am seeing in some provinces that the curriculum is being updated. And I have two teenagers, and I can tell you that my teenagers know now more about sort of indigenous history and stories than I certainly did when I was a teenager.

So there are stories that need to be told, and we need to hear the indigenous perspectives of those stories and the history, so that we can see some balance. So when we talk about what do they need to know, I would just say that I think it’s indigenous people that should have the opportunity to speak up and say, here’s what we think that Canadians need to know, as opposed to in the past, it was always non-indigenous people who got to decide, here’s what you need to know. [laughs]

Brad Regehr: So where do we start this? I mean, I know the focus of this podcast is on the legal profession, but where do we start this training? In grade school, high school? Mike?

Michael McDonald: Oh boy, that’s a big question. Oh my – yeah, give me the hard one. [Laughter]

Brad Regehr: You got the low-hanging fruit before, so –  [Laughter]

Michael McDonald: Okay. I think the best place to start is by reading carefully and unpacking the calls to action and the Truth and Reconciliation Report. Because we got... I backup by saying that I spent some time on the board of World Vision, Canada, and they were focused on other countries, on development – social and economic development. So that sponsor your child for 30 some dollars a months and actually turns into some sort of development criteria.

And where we learn from some of those people, having been in Africa a couple of times is, they have this phrase in development called, it takes a long time to get into trouble, and it takes a long time to get out.

So if you ask yourself the question, well, how did we get in as Canadians? How did we get into this mess? There were issues around aboriginal rights, land claims, treaties, and then there’s incarceration rates and what not.

And well, the important thing is to figure out how we got here, and what is the context?

And so I think that’s where you start, is, you start to learn what that truth is. You can't get to reconciliation without starting at the truth. So the truth-telling is, I think it’s been integrated throughout our society.

So of course our education system, but if you look at Calls to Action, you need to integrate that training throughout the range of professions, institutions, governments, businesses, if the calls to action [permeate 00:14:55] our society. So I would say, of course the education system, but also the precautions and the institution.

The other thing that comes to mind, Brad, when you say, where do we start, I think about who are the decision-makers that would start this. And certainly it’s not me, and certainly it’s not a younger generation and maybe have that enhanced knowledge that would be incentivised to do it. In a lot of cases, it’s non-indigenous people.

So who are these decision-makers? Typically they're older, and typically they don’t have the knowledge that they need to have, and they don’t know what they don’t know. If you have the opportunity as a professional to build those relationships and sit down and talk to those people that have that influence, then you should jump at it and take these advantages. It’s those individual relationships with those people that are influencers, decision-makers.

And all the more reason and excitement – for my excitement about you being in that seat, Mr Regehr. Very exciting.

So when you ask the question, where do we start, you know, we can take that big picture issue about, well, how do we influence knowledge and understanding our culture – big question? But at the end of the day, it’s who’s going to make those decisions, and we’ve got to find out who those people are, and when we meet them and get to know them, and they give us an opportunity to have our opinions expressed, we should take it.

Brad Regehr: Jennifer, I’d love to have your perspective on this too.

Jennifer David: I'm not a lawyer, so I can't speak to the ways that lawyers are trained, but certainly I think the earlier the better, in terms of where to start. So you know, in grade school and in high school – again, I have two teenagers, and why is it that they always have to study Shakespeare?

Why aren’t they studying Richard Wagamese’s Indian Horse? I mean, if you want to talk about emotions and history and the beauty of the English language?

So we really need to think just in telling indigenous stories, but we weaving indigenous stories into history – you know, indigenous veterans and how they were treated during World War II. Or there’s lots of ways, and we just need to integrate those stories into education, starting at a young age, so that kids who grow up think, oh yeah, right, I know that perspective, I've heard that perspective.

And then indigenous people will see themselves in this history, in this story, and this education that we have for each other.

I would also say that, you know, when it comes to adults and we’re talking about, you know, learning – and again, I'm not keen on this word training either, because you know, it’s like, dogs are trained, but people actually are learning.

So when we’re talking about adults and learning, it really does start with cultural awareness. And again, awareness is really just the first tiny step. Cultural awareness is essentially saying, boy, I'm now aware of how much I didn’t know, right. We’re aware of sort of cultural differences.

But to get on this path of reconciliation, we’ve got to move beyond that cultural awareness, which is, you know, where the competency comes in, where the cultural humility, the cultural intelligence, right. It’s one thing to learn about and understand our history, but what does that actually mean? How does that impact the way that you are now going to do things differently, based on what you know?

So it can't just stay there in that knowledge, oh, that’s history, isn't that interesting, right, and then we’re done. It has to be this continuum, and again, it starts with that cultural awareness.

But it also starts at the level with kids in schools, and overhauling the curriculum so that indigenous voices and stories are included.

Brad Regehr: So I'm going to ask you both a question, and I’ll probably get in trouble with it afterwards, but I'm used to that.

Jennifer David: They can edit it out, can't they? [Laughs]

Brad Regehr: I don’t think I'm going to want them to, but how do you respond when you hear calls in a certain province, that they don’t want to teach about the history of residential schools, because it’s too traumatic for children. How do you – what do you say to that?

Jennifer David: Well, do we stop teaching about the holocaust?

Brad Regehr: No.

Jennifer David: And so I mean, why is it any different? It’s different because this is our history, our country, Anglo-Saxon white ancestors that we’re talking about. But you know, we can look to a parallel in Germany. And again, I have some friends who are German and you know what, they learn in school. They have reckonings about what their sort of past was.

And we have to do the same thing in Canada. And there are many children’s books written about residential schools from residential school survivors and indigenous people. So we can't say that the topic is something that children can't handle.

I have read some wonderful sensitive books about residential school that’s aimed at children. So again, that’s, to me, an excuse, when you say you don’t want to teach people because it’s too sensitive. That just tells me that we have an ugly history, but if we don’t acknowledge it, how are we going to not repeat it, if we don’t know what it was?

Brad Regehr: Mike, any thoughts on this?

Michael McDonald: My first thought is my experience of being in Rwanda just three and a half years after the genocide, and visiting World Vision projects that were primarily relief. We got to meet some very wonderful people from Rwanda.

So I was in a store, looking at their local art, and I was asking for an opinion about what’s the most important message if I'm going to buy some art, that I should take back with me, that will remind me of my experience and my time, or encourage me to talk to other people about my experience in Rwanda?

And the response was immediate and strong, and it was, please do not let people forget. Please remind people that this happened to us. And that’s really important. That’s a strong message.

And so I echo what Jennifer is saying, like, we have to tell those horrific stories about the genocide there, or the holocaust, or the treatment of indigenous peoples in Canada. Those stories, that’s part of who you are, that’s something that we all share, and it’s a very important part of our lives.

There’s a good way to say it. With educators, a lot more experience is [unintelligible 00:21:52], would know how to communicate this to children at different ages.

Brad Regehr: Thank you both for that. So to both of you, you do the cultural awareness. How do you know you've lit that spark, you've made that touchpoint, that connection? I'm not sure I want to say that you've had success, but hopefully you know what I'm talking about? How do you know you've made that connection with people?

Michael McDonald: I’ll just jump at this one right away, because it’s something I actually thought about this morning, shockingly. I made a connection between mind, feet and heart. If you communicate the imperative intellectually as to why this information is important, then you actually have the opportunity to pass on the information.

And as a result of that, you can create incentives for taking that information and doing good things with that information, you know, for your profession and for your relationships, or for your business, or economically or politically. And then these people [speak 00:22:54].

But as they do that, they engage with Indigenous and they start developing those relationships. And they go, wow, this is so cool. I really enjoy meeting these people and getting to know them and building these relationships. And then suddenly you're capturing people’s hearts.

And so I think it moves in that direction. You know, whether that’s the right thing, that’s just what I’ve seen happen.

Jennifer David: Yeah, I really like the way that you describe that. I love that, because I was going to say something similar, but maybe not quite so eloquently. That I love it when that lightbulb goes off and people are hearing the kinds of stories that I'm telling, and they just – people just say, I had no idea.

And then it makes them want to change – change their own behaviour. It changes the way they see the world around them, it makes them want to change and improve and strengthen sort of the relationships that they have. It makes them think twice about the structures that they're in in their own company or organisation or department, and try to see them with a different kind of lens. And it inspires people to want to be better, do better.

And that really gets me going, gets me up in the morning and wanting to do these courses, because I see that it can make a difference. If people are serious and really want to engage in reconciliation, then sort of doing cultural awareness can really light that spark.

The intention – and I’ve found, and you've probably found this too, Mike – you know, when people either come into the room or start on a course like this, a lot of people are kind of skeptical, because they're, like, I don’t need somebody to judge me or my ancestors on what we did. You know, let’s not talk about the past.

But then people take the course and they realise, you know, we’re not here to sort of shame people, but we are here to inform people, so that they understand another part of history that they never knew anything about. And not necessarily through their own fault, right.

We’re not trying to put this sort of guilt trip on people, we really want to just say, listen, give us a chance to tell our stories, our perspectives, and you know, perhaps that will open your eyes to where we are today, and that we can work together for where we can go tomorrow.

Brad Regehr: So that sort of takes me to my next question in that – and again though, my podcast obviously focusing on the legal profession, so maybe I’ll phrase it that way. But certainly, if you want to take it outside of that, that’s great too.

But what do indigenous lawyers need their non-indigenous colleagues to know?

Michael McDonald: [Laughs].

Brad Regehr: No more low-hanging fruit, Mike.

Michael McDonald: Oh, my goodness. Well, one of the things that I – you know, hands up to [Argus Lawcom 00:25:53], one of my colleagues in the profession, and also an indigenous lawyer of quite some renown in British Columbia. Coined a phrase as we worked our way through our time with - efforts with the Law Society of British Columbia is, nothing about us without us.

Jennifer David: Aha.

Michael McDonald: And that really stuck and resonated, and it forced people to say, oh, okay, I guess we have to do this together. Then the question for the Law Society is, okay well, who are these people that we need to do this with? And it quickly became apparent it was indigenous lawyers.

So suddenly indigenous lawyers were asked for their views. Now, we’ve got a lot of work to do as a law society, I think, and certainly as a committee, to build and create more opportunities for more indigenous lawyers to come forward and talk about things.

Indigenous lawyers have to be educated twice; they have to learn someone else’s legal system, and then do that translation and interpretation of how it may impact on their overall views on law and legal theory.

The other one is, there’s still racism that goes on, and discrimination that still goes on within the profession, and that rears its ugly head in a lot of cases, particularly in and around the courtroom. There's [unintelligible 00:27:34] examples where indigenous lawyers robed up, wearing a suit, [unintelligible 00:27:38] lawyers [unintelligible words 00:27:39] walking in court in black – and the [unintelligible 00:27:42] is asked to leave. And it shows credentials, and is still asked to leave in any event. Plenty of examples like that.

But there’s also plenty of other examples of racism or prejudice that occurs from lawyers that have practiced indigenous law for decades, through this concept of paternalism, where other people are used to having a lot of influence over indigenous leaders and indigenous people, and telling then what they can discuss, as opposed to building capacity and taking instructions from your client, and letting the client be the client.

Most indigenous lawyers will tell you that the vast majority of the racism or discrimination they’ve experienced, has been from lawyers who practice aboriginal law, who are not indigenous. Which might be surprising, but that if you actually ask them, they will tell you that.

There’s a lot of things that lawyers – that indigenous lawyers would love to say if given the opportunity.

Brad Regehr: Jennifer, do you have anything you want to add to that?

Jennifer David: Well, again, not really a lawyer, but the question about, you know, what would your indigenous colleagues say to non-indigenous colleagues. I think you know, it applies not just in the legal profession, but anyone who is sort of indigenous, trying to say to their colleagues what you need to know.

I think at the bottom of it it’s, if you have the humility to actually ask, to be told what you need to know, and people don’t like to be told. But for a long time, it’s been, you know, the mainstream Canadian society that’s got to tell non-indigenous and indigenous people about indigenous people. And now it’s time for us to listen again to those indigenous voices.

So really, non-indigenous lawyers or people in business, or anyone wanting to go on this journey, starting with cultural awareness, is to at least say, okay, I'm going to listen to what you think I need to know, right, instead of again coming up with, like you said, that self-righteousness, or that sort of arrogance saying, well, I should be able to decide what I need to know, and I don’t need to know that.

Well, how did you come to that decision, and why do you get to now decide, right, whether you do or don’t need to know that about indigenous people, right.

So it’s really got to be a paradigm shift to actually get people to have at least sort of a humility to say, you know what, I don’t know things. I don’t know what I don’t know, so help me understand. And sometimes we get stuck with people who are just not yet ready or willing to go there.

Just looking at the systems, like, looking at Canada’s legal system, look at our justice system, look at the education system or the healthcare system. It’s all built on this, you know, British colonial, Anglo-Saxon, Western sort of structure, and we all know and have experienced, how those systems are built to either discriminate against or disenfranchise, or in other ways put people – or keep indigenous people in their place. And that place, like you say, is inferior to the rest.

And until all Canadians sort of can see that, like, the emperor’s new clothing, whatever that story is, like, until our eyes are sort of opened to understand the whole structures, we’ll never really understand sort of what systemic racism is, or how the work that we’re doing in cultural awareness and cultural competency.

And all the calls to action from the TRC, are really trying to sort of rebuild, have us rethink all these systems. That’s huge, that’s a huge amount of work, and it’s hard for us to see. But at the end of the day, that’s really what we need to keep in mind, that we’re really trying to sort of rethink a lot of these structures that have been in place for hundreds of years, right.

Brad Regehr: That’s right. And unfortunately we are running out of time. But I probably have twenty to thirty questions more for each of you.

Jennifer David: [Laughs].

Brad Regehr: I really want to thank you both for taking part in this episode. I'm always astounded at how little I know and how much more I learn when I do these things. You know, just coming out of this, even the different terms, indigenous intercultural intelligence. Mike, you said cultural humility, cultural awareness. You know, I think those are terms I'm going to start using now.

And certainly that quote, nothing about us without us, that’s going up on the wall of my office.

Jennifer David: Yeah, that’s a great one.

Brad Regehr: So I, again, really want to thank you both for joining me here today. This has been a great session. So –

Jennifer David: Miigwetch for the opportunity. Thank you, I appreciate it. I learned a lot too.

Michael McDonald: Thank you both.

[Music]

Brad Regehr: In this episode I’ve been talking with Jennifer David of the Chapleau Cree First Nation, a senior consultant with NVision Insight Group, and Michael McDonald QC, of the Peguis First Nation, and a member of the Law Society of British Columbia’s Truth and Reconciliation Committee.

Thank you for listening.

We want to hear your stories about your experience as an indigenous person with the legal profession, as a practitioner, as a student, or as an academic. Let us know on Twitter at @cba_news, on Facebook and on Instagram at Canadian Bar Association.

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