Instructor(s): Katherine Hensel

For graduate students, the course number is LAW7105H.

This course will outline the issues, law, and best practices arising in litigation cases involving Indigenous clients. Cases involving Indigenous communities, individuals, and clients brought before Canadian courts and tribunals present distinct challenges to litigants, counsel, and the court or tribunal with respect to:

  • The historic engagement of and/or alienation of Indigenous people with or from the Canadian courts, legal profession, and related institutions;

  • The non-Indigenous and Indigenous cultural foundations for procedural and evidentiary approaches, (e.g., in relation to individual and collective rights and interests, to the protocols around the reliability, transmission, and provenance of information, etc.);
  • The form and admissibility of oral history evidence and evidence concerning “traditional knowledge”;
  • Procedural approaches and best practices to the litigation of disputes engaging litigation issues;
  • Whether judicial notice can, should, or must be taken of historic facts and/or cultural context that may be relevant to the dispute, from a procedural, evidentiary, or substantive legal perspective;
  • Ethical issues for legal counsel with respect to communicating and taking instructions from Indigenous clients, engagement of collective rights and interests, examination and cross-examination of elders, and generally, with respect to the litigation of disputes involving Indigenous litigants; and
  • The role of the legal profession and litigation practice in ameliorating the historic, economic, social, political, and cultural marginalization of Indigenous peoples, and in working towards reconciliation between the Canadian and Indigenous solitudes identified in the Truth and Reconciliation Commission’s report.

The course will examine each of these issues with reference to jurisprudence and other analysis and commentary relating to Constitutional, commercial, family, child welfare, and other civil litigation, public inquiries and other statutory tribunals, and criminal cases.

Evaluation
Students will be asked to submit one short paper of no more than 1,250 words in length (for 25%) and one longer paper of no more than 5000 words in length (for 50%), as well as participate in several in-class group discussions, which will result in one group presentation (for 25%). The shorter papers will relate to the group presentation topics. The group presentations will involve groups of students leading the classroom discussion portion of the class. This is an eligible course for credit towards the Aboriginal Legal Studies Certificate.

At a Glance

First Term
Credits
3
Hours
2

Enrolment

Maximum
20
18 JD
2 LLM/SJD/MSL/NDEGS

Schedule

M: 4:10 - 6:00