Why an Indigenous Rights Centre is needed

There is a need for a body of indigenous thinking on the strategic direction of Aboriginal rights law reform which can grow independent of government interference. An indigenous controlled non-profit organization devoted to legal reform could maintain independence, so long as it does not become overly dependent on government funding or the support of specific individual First Nations. Indigenous control, combined with independence will create a powerful and much-needed voice for advancing Aboriginal rights in Canada, and indigenous rights globally.

Independence would provide open and honest engagement between First Nations, counsel for First Nations, academia, law societies, the judiciary, other civil society organizations (particularly human rights advocacy organizations, churches, labour and environmental NGOs), industry and government. An Indigenous Rights Center would be able to facilitate such discussions without engaging concern from First Nations that such engagement could be seen as a First Nation endorsement of broad based cooperation with some organizations (for example, NGOs and labour). Moreover, a centre of expertise developed through a non-profit organization devoted to legal reform would be perceived as a non-partisan initiative to the extent it is an outgrowth of expertise, rather than political considerations. The latter is often a barrier to First Nations designed and led institutions in Canada.

More important, an Indigenous Rights Center could focus on law reform: identifying emerging priorities; legal education and outreach; and, issues litigation. This would leave the pursuit of individual claims in the hands of litigation firms, while filling a much-needed gap for strategic thinking in terms of litigation coordination and in engaging in broader discourse and advocacy challenging fundamental assumptions underlying aboriginal rights law.

The federal government already devotes considerable time and effort to coordination of litigation, including Aboriginal litigation. The current gap in this function for Aboriginal claimants means there is a very real risk that some claimants may be pursuing litigation strategies which directly or indirectly undermine favourable elaboration of the law for aboriginal peoples as a whole. An Indigenous Rights Center could not and would not dictate the litigation strategies being pursued by First Nations, Inuit and Metis, but could make suggestions on claimants and counsel with respect to the broader implications of their arguments. Currently, this knowledge is not available, meaning it is quite possible aboriginal claimants are unwittingly undermining each others’ positions.

There are several initiatives in Canada which are directed at developing indigenous theory and practice to counter the status quo, for example, the Center for Indigenous Governance at the University of Victoria, the Center for Governance at McMaster University, and the Native Law Center at the University of Saskatchewan. While some of these initiatives do target Chiefs, technicians and other potential claimants, there are no initiatives which target legal reform of aboriginal rights law, nor are there very many which include litigators, the judiciary, legislators or policy makers as a target audience for reform.

An Indigenous Rights Center will focus on the development of a principled approach to the development of aboriginal law. This will include articulation and elaboration of the concepts of recognition and reconciliation, as well as challenging outdated or improperly applied doctrines of pre-constitutional and colonial law which serve to perpetuate injustice in aboriginal rights law.

Although such work is highly relevant to litigation, it is impractical for law firms to devote considerable resources to such a project. By contrast, development of a principled approach to aboriginal law as an academic project risks becoming focused on issues not relevant to current practice or not strategically achievable.

An Indigenous Rights Center could convene practitioners, scholars, Chiefs , technicians, Elders and youth to develop a law reform initiative which is both relevant to multiple communities and which is designed to be translated into action devoted at reversing existing injustices in the legal system.