‘Fringe’ group of Alberta lawyers force vote on mandatory Indigenous cultural competency training

Update Feb. 6, 2023: Alberta lawyers vote to remain mandated to take Indigenous cultural competency course

A letter issued Jan. 31 and signed by the entire board of the Law Society of Alberta (LSA) could put into perspective a movement by a vocal group of lawyers to do away with a rule that requires mandatory training in Indigenous cultural competency.

A Jan. 13 petition signed by 50 active lawyers has forced a special meeting of the LSA for Feb. 6 to vote on a resolution to repeal Rule 67.4, which allows Benchers (board members) to “prescribe continuing professional development requirements to be completed by members, in a form and manner, as well as time frame, acceptable to the Benchers.”

As the only professional development requirement in place right now is an Indigenous cultural competency course called The Path, a favourable vote on the resolution could specifically do away with that mandate, said Koren Lightning-Earle, legal director atA Wahkohtowin Law and Governance Lodge at the University of Alberta.

The Benchers mandated The Path in October 2020 as continuing professional development for the law society. That mandate was followed by the adoption of Rule 67.4 allowing Benchers to prescribe specific continuing professional development.

Lawyers are given 18 months to complete The Path, a five-hour series of online modules. The training was open to both active and inactive lawyers at no cost. Those who do not take the course will be suspended.

In November, 26 lawyers were put on administrative suspension for not completing the course within the 18 months timeframe.

Lightning-Earle, who served as the LSA’s Indigenous initiatives liaison for a number of years, began the law society’s work to address the 2015 Calls to Action from the Truth and Reconciliation Commission on the legacy of Indian residential schools. With 18 of 94 calls aimed at the justice system, Call 27, in part, directs “the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.”

Lightning-Earle’s work led to the creation of The Path, which is the LSA’s response to Call 27.

“As someone who has started the ball rolling…I think (the 50 lawyers) really need to take a look at why they are not comfortable about taking this training. Sometimes when we learn about things that are foreign to us, it makes us feel uncomfortable. And reconciliation isn’t about putting blame. But your feelings, when you’re learning this information, is going to come up, so I think people really need to take some time and explore why they feel that way. And really get to the deep root about why are they putting their names to the petition…Are they getting caught up in other people’s agendas?” said Lightning-Earle.

Lightning-Earle is not surprised by the signatories on the petition. However, she is surprised that they “put their names out there to publicly state to the world that they do not agree with this training.”

Hadley Friedland, associate law professor and academic director with Wahkohtowin Law and Governance Lodge, is also not surprised. She notes that many of the signatories are sole practitioners, clustered in small firms, or belong to the Justice Centre for Constitutional Freedoms.

Glenn Blackett, a litigator with the justice centre and petition signer, wrote an article for The Dorchester Review, a publication which claims to “challenge the politically correct vision of history often found in the media and in academe.”

Blackett referred to the Indigenous cultural competency training as “re-education, or indoctrination, into a particular brand of wokeness called ‘decolonization.’” He also questioned the legality of LSA to mandate “cultural re-education.”

In the letter issued by the Benchers Tuesday, they asked active members of the society to oppose the resolution.

The petitioners, says the Benchers’ letter, “believe that the Law Society should not have the authority to mandate specific continuing professional development programming, including the recent Indigenous cultural competency course … and ultimately the Law Society’s role as a self-regulating body… If we value self-regulation, we must ensure that we continue to discharge our duties using the lens of the public interest in everything we do, including continuing professional development. We believe that Rule 67.4 serves the public interest and should not be repealed.”

The Canadian Bar Association Alberta Branch (CBA) delivered a statement Jan. 30 strongly supporting Rule 67.4.

“CBA Alberta believes that the Law Society of Alberta, as the regulator, should have the authority to determine which learning activities are necessary to maintain a high professional standard and the integrity of the legal profession as one that serves the public interest. The commitment of the profession and its regulator to continuing professional development is a commitment to excellence within the profession,” said the statement.

The statement by the CBA is something “rarely seen in the profession because they…tend not to take a stand,” while the letter from the LSA Benchers “is unprecedented,” said Friedland.

“What this says to me as we work toward reconciliation and justice (is that) there’s always going to be a small fringe group that is going to be against it. If they have the ability to be loud and be heard, they will continue to be,” said Friedland, also a member of the law society.

She points out that there are almost 10,000 active members in the society and only 50 have opposed the mandate.

However, that low figure still provided the requisite number to trigger the LSA to hold a special meeting in accordance with the Legal Profession Act.

Lightning-Earle also believes that the detractors are a fringe group.

“I think with what has been going on in our political climate, I feel there’s a minority of people…that fringe minority that just (feels) like they’re losing their privilege,” she said.

However, Rachel Snow is not as confident as Lightning-Earle and Friedland. She held that the Benchers are “trying to keep up the appearance of being fair to First Nations people.”

Snow is one of three First Nations women undertaking legal action against the province and the law society, which require them to swear allegiance to the Crown before they can practice law in Alberta.

But Snow, who is joined by Anita Cardinal and Janice Makokis, wants to be able to make the oath in accordance with Indigenous people’s collective beliefs.

Snow believes that if the Benchers were committed to making a difference they would have more than a single First Nations person among their 24 board members.

“If they were serious, they would create awareness because we have such a high number of First Nations incarcerated or going through the judicial system. It’s very important for lawyers or judges or the judicial system to have an understanding of our people,” she said.

Snow said that she prefers to practice her Indigenous laws outside of the mainstream system and would not be taking the oath even if the requirements change.

In an earlier interview with the law society about changing the oath, they stated that amending the legislation that controlled the oath was not within their power. However, they supported an amendment to the oath that would “create flexibility… (and) remove inequitable barriers to the practice of law in our province.”

As for the lawyers who are pushing to have Indigenous cultural competency training and other continuing professional development programming removed as a mandate for the LSA, Snow said, “It would seem that being an intelligent group, a smart profession in the country, that they would want to learn something so that they would be better able to understand or make decisions.

“But they don’t want to. They still want to shove their decision-making, their white privilege complex, they still want to shove that down our people. That’s why I’m standing where I’m standing protesting. The whole system is inherently racist.”

Friedland, who is not Indigenous, is disappointed with what is happening.

“I am really sad to see this and I’m sad that people have to spend their time responding to this,” she said. “We really have to take a strong stand. Non-Indigenous lawyers need to take a strong stand. This also can’t be shouldered by Indigenous lawyers.”

Windspeaker.com reached out to Jessica Buffalo, Indigenous initiatives counsel and chair of the Indigenous Advisory Committee for the law society, to talk about the petition and the resolution.

Instead, a statement was received from LSA CEO and executive director Elizabeth J. Osler, KC., saying in part, “The Law Society is dedicated to protecting the public interest by promoting and enforcing standards of professional and ethical conduct by Alberta lawyers.”

Provincial Court of Alberta’s Chief Judge Derek Redman said it “wouldn’t be appropriate” for him to comment on what the law society was voting on.

However, Redman said his own work to make the court system more welcoming for Indigenous people “has been constructive.”

In October 2022, Redman introduced the Alberta court’s first-ever Indigenous Justice Strategy, with the goal to “provide a culturally relevant, restorative and holistic system of justice for Indigenous individuals…”

In an email response to Windspeaker.com asking if, in light of what was happening with the law society, his initiative had faced any setbacks, Redman responded, “I’m privileged to be the Chief Judge of a court comprised of excellent legal thinkers. They’ve really shown this with the positive, nuanced, and thoughtful questions and feedback about the Indigenous Justice Strategy we launched last year…and this gives me a lot of confidence in the long-term application of this strategy.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.