Student of Indigenous Law at the University of British Columbia, Mark Stevens on what genuine reconciliation really means, and how student legal clinics can help disenfranchised communities gain access to justice.
Tracy: Let's open with an idea you expressed to me once before, which was implementing traditional Indigenous law into a system that could be accessible today?
Mark: Yeah so it’s a process of revitalization. Some people have realized how important it is to preserve and restore Indigenous legal orders. There's a great law professor at UVIC [University of Victoria] by the name of John Borrows and he talks about this in depth. The whole idea behind it is legal pluralism. In Canada you have the common law, [which was] imported from British legal traditions, and Quebec has the civil law, imported from French legal traditions. So there’s also a body of law that Indigenous peoples in Canada have used to structure their societies for thousands of years, which we can call Indigenous law. It’s really helpful to draw on Indigenous law for First Nations land claims because you’re trying to translate the ways that these cultures view their relationship with their lands into something that can be recognized by the common law. So you're trying to look at how a particular group articulates land borders, or passes land from one family to the next, and these concepts differ a lot from western notions of property. One large difference is that Aboriginal land is communally held, meaning that all members of the group share in the benefits as well as the responsibilities that flow with stewardship of the land. The Anglo-Canadian legal system has a stronger focus on 'rights' than it does 'responsibilities'. The common law generally doesn't like imposing positive duties to act - the result is more ‘take’ than ‘give’. We’ve lost touch with what it means to have a reciprocal relationship with the land, as well as with people within our communities. So I think the process of Indigenous Law revitalization is beneficial both for Aboriginal, and non-Aboriginal peoples. It requires examining a lot of ways of living that have - in a lot of cultures - been damaged through residential schools and other forms of colonialism, and so recognizing Indigenous Law is a part of reconciliation. The courts have acknowledged this through the admissibility of oral histories of evidence for land litigation, which is a huge step.
Recognized by the courts recently?
Well in the late 1990’s in a case called Delgamuukw v. British Columbia oral histories were recognized by the court, so fairly recently in terms of Canadian Aboriginal law jurisprudence. It’s a bit of an awkward process, because the common law likes things to be in writing, but it's an indication that there is room for Indigenous Law within the Canadian law. B.C. is unique in Canada because there are only a handful of treaties compared to other provinces. In the rest of Canada, many First Nations have signed treaties, so they have effectively given up control of their lands for other benefits, whereas in most of B.C. that process hasn’t happened. It's really important to continue to recognize that.
I often notice that at most talks and documentary screenings the presenter or the introduction will always make note that "We are sitting on unceded Coast Salish Territories".
Yeah and it's important to keep acknowledging what those words mean for the First Nations peoples of B.C. The land in which we’ve built our cities in B.C. has never been legally acquired by the Canadian government, whereas in most parts of Canada, when the treaties were signed and the Reserve system was set up, people were displaced. They went from being nomadic and semi-nomadic peoples with settlements all over the place, to just being clumped in one town, which is a European colonial concept. Here in B.C. it's really interesting because you'll see tiny little Reserves all over the place; UBC [University of British Columbia] for example is on Musquem land. So a couple kilometres away there's a Musquem village where people have lived for thousands of years.
I met a lady who was involved with an "Orange Shirt Day" movement in Williams Lake that is working to recognize the harm residential school systems had on their children. She brought up something I hadn't thought much of before: an unexpected challenge was the infighting and resentment toward one another. Likely because of how many smaller communities were expected to represent themselves to the government as one indivisible Nation.
I think having a unified voice is really important. Every First Nation is going to have its own relationship with colonialism, and its own particular desires and needs in terms of their quest for sovereignty, or land, or whatever it may be for each individual community. A big issue in terms of Aboriginal Title claims is overlapping claims to the same piece of land - so neighbouring First Nations not being able to agree on boundaries. And it works against both of them in litigation – the court looks at the ability to exclude as a foundational property concept in the common law. So if you're fighting with your neighbour over a mountain, or a hill, or an area that you both use at different parts of the year, and between the two Nations you can't come to an agreement, then the Crown will use that against you in court and you'll never have a chance of getting a declaration for either.
You also worked in the field of social housing. When one is granted housing (subsidized or no rent), are they also given other supports like trauma recovery programs, medical help for withdraw, counselling, or job searching tools? I ask this because I understand these issues to be multi-layered, where just housing doesn't cut it. It won't work to just say, "Okay now you have an address, that should end all your troubles."
Yeah so there is supportive low-barrier housing on the housing spectrum. It's still a very tentative type of housing; it's your first step from out of a shelter, its low barrier, there are harm-reduction materials on site, and there are a lot of other very strong social support services. So yes, they have those connections drawn out. But you're still in a very frantic neighbourhood and you still haven't really broken those ties to your more destructive tendencies. Proximity to the drug economy is a huge challenge.
Definitely. Wherever you become compulsively habituated toward any drug, everything in that environment will begin to cue you to obtain that drug. So all the sights, smells, sounds that surround your 'habit' will stimulate dopamine production - which sets you on an unstoppable drive towards your drug. One particular talk I went to brought up the fact that even if you've been in rehab for six months, as soon as you go back to your old neighbourhood and you see your drug dealer's door, your dopamine levels will rise expending all your energy towards achieving that hit. Even if your conscious thoughts are telling you "No, don't do it", you're already stimulated - not much can break that dopamine driven pursuit. It seems an impossible challenge.
And in my limited experience it takes a very, very strong person to be able to beat these challenges. You have got to have a lot of strong supports in your life to be able to make that drastic change. And those support systems are what is strived for in the field. There are some very strong-willed, compassionate people doing very good work providing support services in the DTES.
That's very awesome to hear. Are there any inspiring individuals that have been a major influence in your own life?
Yeah, I've met some really caring, compassionate students at law school, and have come in contact with equally caring law professors, as well as other people advocating for Aboriginal peoples in British Columbia, and Canada. And it's their work that definitely motivates me. People that aren't willing to accept the general narrative that things are okay for Aboriginal people in Canada right now, because they're really not. There’s still a long way to go. There is progress, and there's some positive movement forward, but taken as a whole, the situation is still very desperate for a lot of people. There will actually be a case coming out in the next couple months that will likely reveal some of the ways in which the Canadian government has been skirting their responsibilities.
What are they being accused of with that case?
Underfunding essential healthcare services on reserve. The whole narrative with the government is First Nations peoples get lots of money and if we're going to give them more money we need to watch it more carefully, because they're all corrupt. But because the federal government funds reserves, and the provincial government funds all health care and education outside of reserves, if you look at the numbers, reserve First Nations kids get a lot less. And this is in terms of specific types of conditions that require medical care that is outside of the basic services in hospitals. So First Nations children on reserve suffer from this government inaction.
Does it frustrate you what is and isn't taught in school? We all learned about Canada's involvement in WWI, and WWII, but our own colonial history is not mentioned truthfully. They'll say it's just, "not in the curriculum".
Of course. And it's just strange. I remember hearing from a First Nations activist who was in her mid-20s, and she had been through multiple foster homes growing up; she had a very tough childhood. The first time she heard about the residential school system was when she was 20. She learnt about this history through connecting with other people in the Indigenous community. So that's the first time that she was able to better understand some of the things that have shaped her life experience, and that of other First Nations youth. Otherwise you grow up your entire life going from foster home to foster home, not really understanding why things have unfolded the way they have for you. Growing up, I had no idea what residential schools were. There was certainly no discussion about how these institutions could traumatize families, and entire cultures - even though their explicit mandate was to eliminate culture.
There are repercussions that come from the stigma of being unstable. Not having had the right conditions for healthy growth and development affects people's lives in massive ways - yet they can't discuss it. The parents are not talking about what happened to them because it's not an 'accepted' conversation - there's a stigma. But then the kids don't know why their parents can't emotionally connect, which really hinders growth. Not connecting in a genuine way really changes how the brain works - years and years down the road. But they never want to seem like they're 'complaining', or 'dwelling' on the past. Or even if anyone would believe them.
That's very true. And it's only a generation away - where you couldn't really talk about your feelings much in Canada, and even right now, you and I are talking about this in a very liberal part of the country where people are able to express, and to be honest with themselves. We're only at the very beginning of the healing process, and the process of reconciliation should be viewed as a continuous process. Because it's troubling if Stephen Harper says there's no colonial history in Canada, issues an apology for the residential school system, and then these issues get put on the back burner. Canada most definitely has a colonial history, and that process of colonialization continues through to the present day. In fact Stephen Harper has followed that apology of his with eight years of funding cuts to Aboriginal programs, and a failure to adequately engage Aboriginal peoples on issues of central importance. Most of the real progress has come from the Supreme Court, not the government of Canada.
Which is appealing, yet another reason to look at what we can each do to raise awareness, and to put our energy towards community level change. So after you finish your studies in law, you have a clinical program you'll be doing?
Yeah it’s called the Indigenous Community Legal Clinic, and is located in the Downtown Eastside. It's a student run law office that deals with poverty law and is focused on the Indigenous community in the neighbourhood. One of the main courthouses for provincial court in Vancouver is down on Main and Hastings, and the clinic is located just around the corner. So they deal with all kinds of criminal offences, family law, and small claims matters. UBC has been operating this Indigenous legal clinic for quite some time now - I think over ten years. So I'm looking forward to being down there for four months acting as an articled student under the supervision of a supervisor. Access to justice in B.C. is a real challenge because there are significant shortcomings in legal aid funding, so this program serves a very important purpose within the community.
Well Mark, I think that what you're doing is phenomenal, and I'm glad there are programs out there not only for marginalized communities, but for lawyers to continue pursuing their proclivity for justice.
Agreed. Thanks Tracy!
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