Aboriginal Law Insights
By Robert Janes, KC, July 22nd, 2015
Part II: What Should I do in Law School?
Chapter 1: General Advice
While many other professional disciplines require students to follow a single course of studies (such as medicine) or tightly described streams of study leading to well-defined specialties (such as engineering), law school is a relatively unstructured program that allows a great deal of choice after first year law. This flexibility can be positive in that it allows a student to devise a course of studies that suits their particular ambitions; but is also a challenge in that students may inadvertently leave gaps in their course selection that may impede their ability to practice after graduation. Any lawyer hoping to practice Aboriginal law — particularly in the long term — needs to be aware of a broad range of legal disciplines and at least proficient enough with them to recognize issues and give general guidance even if detailed advice needs to be referred to specialists in other areas of law.
While many aspiring lawyers think of Aboriginal law as being practiced in the well-known Aboriginal law boutique firms, as I suggested in the first posting in this series, Aboriginal law is practiced in many other legal settings including government, banks, mainstream law firms and in-house positions within First Nations governments and industry. In fact, it is far more likely that a young lawyer hoping to break into the field of Aboriginal law will find employment and early experience in these settings than in Aboriginal law boutiques. Indeed, early experiences in these more general settings may offer better training for some aspects of the practice of Aboriginal law than boutique firms (a future post will comment on this). This too highlights why it is important to ensure that one's law school transcripts are not devoid of important core courses or do not have an over-concentration in a specialized area like Aboriginal or constitutional law.
Today's law schools (particularly at the Universities of Victoria and British Columbia) integrate aspects of Aboriginal law into the regular curriculum. Thus, constitutional law, property law and criminal law will all to one degree or another deal with Aboriginal law issues. Additionally, upper year courses in subjects such as Natural Resource Law, Environmental Law and Administrative law will likely contain some reference — and in some cases without a lot of reference — to the issues raised by Section 35 of the Constitution Act, 1982, Aboriginal title, Aboriginal rights and Treaty rights – as part of a broader syllabus.
Typically, because the practice of law is sufficiently general, particularly in the early years, specialization typically takes place a number of years following graduation. That being said, however, there are a few broad choices that tend to be made early and in many cases (at least anecdotally) law students often have clear ideas about certain areas of law that they are absolutely focused on doing or determined never to do. These early decisions typically relate to whether or not one is going to practice litigation and/or criminal law or avoid the courts altogether. In many cases (although not all) this seems to reflect issues related to personality and are independent of one's larger interests or political inclinations. To the extent this is the case, it certainly may affect a law student's course selection.
With that preamble, here are my thoughts on some of the core courses that are important for anyone hoping to pursue Aboriginal law and why they are important. These comments are idiosyncratic and there are other practitioners who may have other views but these represent my best attempt to give some guidance.
Concepts from the law of equity and trusts are the root of most Aboriginal law jurisprudence in Canada. For example, much of the relationship between the Crown and First Nations is governed by concepts of fiduciary duty. Similarly, the courts have developed an approach to understanding the ownership of resources on aboriginal title land that is deeply rooted in equity's approach to separating the "legal" ownership of land from the "beneficial" or "equitable" title to the same resources. While the Courts have modified these principles for the context of Crown-Aboriginal relations in Canada, it is much easier to understand how the courts approach these issues with a good grounding in the law of trusts or equity. This is essential whether one is contemplating a career in litigation or not.
On a day to day basis First Nations and Aboriginal people have to deal with government decision makers or are themselves governmental agencies exercising inherent government powers or powers delegated under statute or under modern treaty arrangements. The exercise of these powers — whether by the federal, provincial, or municipal governments or First Nations governments — generally falls within Administrative Law. Many law schools require administrative law as an advanced course and offer supplementary courses in advanced topics, including human rights law. At the very least, students should take a general administrative law course and serious consideration should be given to more advanced courses in this area. Again, this is true whether one intends to practice litigation or not.
Students interested in acting as in-house counsel to First Nations governments, or providing governance advice to First Nations from the context of a private firm, should consider additional advanced elements of administrative law. For example, courses like employment and municipal law may not seem obviously connected to aboriginal law, but they provide insight into good governance practices and are topics that First Nation governments can encounter regularly. Take employment law: First Nations governments often face complex employment issues arising due to jurisdictional anomalies, overlapping political and administrative functions, and complex issues surrounding traditional laws, cultural norms, race and competency. Lawyers advising First Nations on these issues should have a strong background in employment law principles and human rights, particularly since the Canadian Human Rights Code applies to all aspects of Indian band governance, including governance structures under modern land claims agreements.
A strong background in municipal law will assist lawyers advising First Nations in land-use planning. Many First Nations governments are increasingly assuming responsibility for land-use planning, whether through the Indian Act, the First Nations Land Management Act, or within the context of modern land claims agreements. As Aboriginal title is increasingly recognized and First Nations are able to exercise their inherent governance powers over their lands, land use planning will become even more important. Understanding municipal law and land-use planning is also critical for First Nations located in urban or suburban areas, where local government zoning can impact the management of reserve or treaty settlement lands. In addition, although the statutory and common law frameworks are different for First Nations and local governments (sometimes in very important ways), municipal law can still be very useful for developing governance mechanisms and approaches for reserve and treaty settlement lands.
For all lawyers, but especially those interested in litigation, evidence is an absolutely essential course. Fundamental issues in Aboriginal law focus on questions of evidence and how rights must be proven. In the Aboriginal law context, these issues are particularly challenging since the evidence needed to prove aboriginal rights or demonstrate aboriginal concerns in consultation does not neatly fit within the normal rules of evidence and court procedure. For example, much of Aboriginal law examines history and resolving dispute historical facts, which exists almost entirely within the realm of hearsay. Add to this the complexity of dealing with oral history evidence and extensive expert evidence from a range of fields including history, archaeology, linguistics, anthropology and ethno-history and you may start to understand why Aboriginal rights cases can stretch over months, if not years. In judicial review proceedings, lawyers must also understand how evidence may be admitted to prove what the record was, and, in some cases, what the record should have been. To understand how these principles work, lawyers must have a solid foundation in basic evidence law. Indeed, to the extent that there are any advanced classes in evidence topics such as expert evidence or oral history evidence, these should also be pursued.