This post originally appeared as a blog post for the Ontario Bar Association's Women's Lawyer Forum. I post this for International Women's Day.
I remember the first day that the Honourable Jody Wilson-Raybould was announced as Justice Minister/Minister of Attorney General. I was sitting in my laws of evidence class, distracted by the news showing up on my phone. I was excited to see her, an Indigenous woman lawyer, in this role! Later that same week, I wrote an open letter asking her to consider the perspectives of Indigenous women in the sex trade and the harms that criminalization creates in their lives. The Honourable Wilson-Raybould responded to this open letter, making a commitment to listen to sex workers.
When the Honourable Wilson-Raybould announced that she was stepping down as Justice Minister/AG in early 2019, I felt sadness and frustration. Perhaps my feelings were also slightly self-centred over the fact that an Indigenous woman was no longer the chief law officer for the federal government. I enjoyed seeing a strong Indigenous woman leading the reign.
This winter, I read Jody Wilson-Raybould’s book, From Where I Stand: Rebuilding Indigenous Nations for a Stronger Canada. The book provides a closer look into some of Wilson-Raybould’s initiatives as Justice Minister/AG and a deeper insight into some of her experiences. Wilson-Raybould reflects on her speeches extending back approximately 10 years. The speeches are divided into five themes that highlight a framework to implement reconciliation to a diverse audience, from policy-makers to business owners to industry insiders.
As an Indigenous feminist and lawyer, I am critical of reconciliation. However, both my mind and heart are not completely closed off to its possibilities. I approached Wilson-Raybould’s book through a critical Indigenous feminist legal lens, which challenges feminist legal theory, Indigenous legal theory and Indigenous feminism. My goal in the review below has been to engage all three theories, which often fail to consider the other. Not only am I interested in critiquing gender roles, but also colonial laws and indigenous laws and legal traditions.
Wilson-Raybould’s book begins with an introduction that lays out her framework. She briefly outlines her five themes for the book, which I have also used to organize my review below: 1) moving beyond the post-colonial door; 2) rights and recognition; 3) governance; 4) duty of business owners and industry insiders; and 5) a feminist discussion (despite her resistance to the title) on the justice system – what she refers to as restoring the balance. The book offers a “foundational understanding of the challenge of reconciliation today” and more aptly, it offers a gift for those looking to understand the work of reconciliation and a pathway to do the work of reconciliation.
MOVING BEYOND THE POST-COLONIAL DOOR
As outlined above, the first theme is a discussion on moving through the post-colonial door. Wilson-Raybould describes this door as a “new future based on self-determination” that is informed by a Crown-Indigenous partnership, full legislative reform and full removal of other barriers.
Wilson-Raybould begins this section by highlighting the fact that Indigenous communities are the only groups in Canada who have to go through the process of decolonization – a process to rebuild its own governance. She challenges others to move beyond the Indian Act and this theme remains omnipresent throughout the rest of her speeches. In these calls to action, Wilson-Raybould challenges movements – namely Idle No More – to move beyond protests and move toward rebuilding nations.
I remember when one of the first tweets with the hashtag #IdleNoMore was sent out into the world by an inspiring Indigenous lawyer, Tanya Kappo. I was in my undergraduate studies at Western University and I felt a huge sense of pride in seeing a movement grow from one small gathering of Indigenous women to a large international movement. I find Wilson-Raybould’s critiques here valid but unfair on some accounts. The Idle No More movement was born out of a desire to rebuild nations or center nations; the protests were merely its vessel for growth and scale to an international movement.
RIGHTS AND RECOGNITION
The second theme is rights and recognition or what Wilson-Raybould frames as moving away from the fiduciary gridlock. This gridlock recognizes the historical and ongoing paternal approach to Indigenous governance under the Indian Act. It also conversely recognizes Indigenous governance’s adaptability and flexibility—the inspirational power of Indigenous governments’ hybrid nature, having both federal and provincial powers.
Reflecting on her role as the chief law officer for the federal government, Wilson-Raybould outlines the role of the Crown and challenges critics of reconciliation. She outlines six principles that should guide the Attorney General in Charter-litigation. Briefly, these include:
The principle of constitutionalism and the rule of law: The AG should concede a Charter claim where there is no viable argument in favour of a law’s Charter compliance, while considering Section 1 / Oakes analysis and Charter remedies.
The principle of parliamentary democracy: The AG may defend Charter compliance of federal legislation. At the same time, the AG’s government promises to amend or repeal challenged legislation through regular parliamentary processes.
The principle of adjudication: The AG must put their best foot forward in all cases about Charter compliance with federal laws to assist the courts’ ability to arrive at informed constitutional conclusions.
The principle of continuity: The public interest, not partisan interest, should govern changes to a previous government’s litigation strategy.
The principle of consistent application of the Charter: The AG may appeal a court’s ruling on a Charter question to ensure pan-Canadian determination of law.
The principle of access to justice: The AG should seek to settle in cases where she shares the legal conclusion with the claimant, recognizing that litigation is expensive; access to justice, however, may favour continued litigation to resolve the issue in a public forum.
Wilson-Raybould also discusses what it will take to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP): Canada’s unqualified support. Though largely uncontroversial, this is the first section that provides some insight into Wilson-Raybould’s thinking as the Minister of Justice/AG.
The third section discusses governance on a range of legal issues and informs the reader about past actions taken on rights’ recognition legislation. This is perhaps the first moment in the book that Wilson-Raybould is clear about what “transformative change” entails: the complete abolition of the Indian Act.
Regrettably, it is also the first time she provides insight into the reasoning for the dissolution of Indigenous and Northern Affairs Canada into two new departments. Wilson-Raybould explains that it was done to help “speed up” the transformative change in Indigenous nations to get rid of the Indian Act. Perhaps this dissolution coupled with the creation of two new departments has created more problems but only time will tell – time, sadly, that many do not have.
DUTY OF BUSINESS OWNERS AND INDUSTRY INSIDERS
The fourth theme examines the duty of business owners and industry insiders in the context of the duty to consult. Wilson-Raybould presents another gift to readers by calling on them to think about the flexibility of aboriginal title. She says, “We know it exists” but to where and to what extent is open for discussion. She also discusses the possibility of aboriginal title over water.
The final theme, in my opinion, focuses on a feminist discussion on indigenous issues, although Wilson-Raybould refers to it as a discussion on restoring the balance between Indigenous peoples and the justice system. Specifically, she identifies restoring the balance between Indigenous women and girls as a nod toward reconciliation and outlines her initiatives including the controversial Bill C-75. Bill C-75 is the legislation that Wilson-Raybould passed to allegedly address delays in the criminal justice system.
I give Wilson-Raybould credit for sharing her thoughts in her speeches, which are now helpfully compiled in a book. This last part of the book though (comprised of her last two speeches) were the most impactful for me as they represent a change in her tone – in my opinion, a more critical and candid one. Her last two speeches were given after she left the Minister-post and was kicked out of the Liberal caucus. I appreciated her message especially as it applied to Indigenous women and girls. Wilson-Raybould highlighted the fact that it is Indigenous women and girls who are blamed for their marginalization but that our lived experience is also used against us – something to be protected from.
Whether you are a business owner, lawyer doing Charter challenges, or an Indigenous rights activist, the book offers a helpful look into the thinking of Canada’s first Indigenous Justice Minister/AG. It also demonstrates the complicated nature of feminist thought.
I found myself agreeing with a lot of what Wilson-Raybould said but disagreed with some aspects. I primarily found that some of the questions raised for Indigenous leaders were unfair, such as if a community had a vote on leaving the Indian Act today, how would these leaders vote? Though it is an honest question, it is one-sided because it does not account for the fact that many still do not understand what it means to leave the Indian Act behind. Even as a lawyer today, I still rely on its minimally insignificant health benefits to afford eye-glasses, with vision that has likely worsened since becoming (ironically) a lawyer. Perhaps, we could all be asking questions about what kind of supports others would be needed to leave the Indian Act, instead of shouldering the responsibility on others to leave it behind today.
In the end, there are many challenges facing Indigenous communities. For feminists and allies, it is a challenging time to assist in advocating for change. That change must not be at the expense of Indigenous nations. The Honourable Jody Wilson-Raybould’s book presents a pathway forward for everyone to begin the challenging work of reconciliation now.