Ultra Vires


U of T Law Should Incentivize Student Engagement with Aboriginal Law

Stephanie Lewis (2L)  

The Truth and Reconciliation Commission’s (TRC) Call to Action #28 calls upon law schools to implement a mandatory course on Aboriginal peoples and the law. The TRC determined that educating law students on Aboriginal peoples and the law, including “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” is an important step in the process of reconciliation.

While U of T Law has a few course offerings that focus on these areas of study, it is striking that none of the classroom-based courses in Aboriginal law are eligible to fulfill students’ degree requirements. Although the Faculty’s Truth and Reconciliation Committee has opted against a mandatory course, at least in the short-term, the Faculty still has an opportunity to show its commitment to enhancing student engagement with Aboriginal law. In this article, I propose two ways in which the Faculty can foster such engagement. These suggestions could eventually complement a mandatory course, and will help fill the gap in the interim.

Recommendation #1: Count at Least One Course in Aboriginal Peoples and the Law Towards JD Students’ Degree Requirements

I propose that the Faculty evaluate the current course offerings in Aboriginal law to determine which courses could satisfy the International/Comparative/Transnational (ICT) and/or Perspective Course Requirements.

In the 2016-17 academic year, the Faculty is offering upper year students three courses and two clinics/practicums with an Aboriginal law focus. The Faculty is also hosting Professor John Borrows, Canada Research Chair in Indigenous Law, to teach a four-day, one-credit intensive course on “Indigenous Law in Context”, which will take place on the Cape Croker Indian Reserve on Georgian Bay.  Additionally, four students may participate in the Kawaskimhon Moot in satisfaction of their mooting requirement. However, none of the current offerings qualify as an ICT or Perspective course.

An ICT course “must contain a significant international, comparative or transnational component”. This means that it must be “concerned with with global themes and [require] students to examine law from a non-Canadian perspective”. On the other hand, the Perspective Course Requirement ensures that students engage with “the nature, sources, and purposes of legal regulation in general” rather than merely with “the study of legal doctrine in a particular area”. The ICT and Perspective categories seem quite broad—courses which satisfy these requirements range from “Advanced Labour and Employment Law”to “Investment and Growth in Emerging Markets”, which each satisfy both requirements. Students can also fulfill the ICT Requirement by going on exchange.

While Professor Borrows’ “Indigenous Law in Context” course only counts for one credit in its present form, there is a strong argument that a full course in Indigenous legal traditions would satisfy the goals of the ICT requirement.  Alternatively, the Faculty could offer a global comparative Indigenous and/or Aboriginal law course that incorporates perspectives from Canada, the United States, South America, Australia, and New Zealand.  Content for such courses might require expertise beyond that of U of T Law’s current faculty, the Faculty could consider investing resources in this area in the coming years.

A more straightforward solution would be to count at least one of the existing courses in Aboriginal law towards the Perspective Requirement. A particularly appropriate course might be “Aboriginal Peoples and Canadian Law”, taught by Professor Kerry Wilkins. Unfortunately, the Faculty did not reply to my request for comment, so it is unclear why this course does not already qualify as a Perspective course.

The ICT and Perspective categories are defined in a flexible manner, and the courses that satisfy each requirement suggest that the defining criteria should be interpreted broadly. Thus, I am hopeful that the absence of courses in Aboriginal law from these two categories is a mere oversight on the part of the Faculty, similar to the unintentional omission of the Kawaskimhon Moot from the 2016 Moot Results published on the Faculty of Law website in April. That error was promptly rectified, and it is my hope that the Faculty will review its position on this matter in a similar fashion.

Recommendation #2: Award Credit to Students Who Take Reputable, Comprehensive Courses in Aboriginal Law at other Canadian Law Schools

At least until the Faculty implements TRC Call to Action #28, it should encourage students to pursue other opportunities to engage with Aboriginal and Indigenous law.

For instance, the Faculty should reconsider whether it will award credit to students who participate in the Indigenous Summer Intensive program at the University of Victoria Faculty of Law, which is co-led by Professor Borrows. When former 1L student Erinn Wattie approached the Faculty in Spring 2016 about having the UVic program considered for transfer credit, she was told that taking summer credits is against the Faculty’s policy. Assistant Dean Sara Faherty explained that accepting summer credits would “misalign a student’s minimum/maximum credit load”; if some students were allowed to bolster their transcripts with summer credits, they would have an advantage over students who were taking the required 13-16 credits per semester. Assistant Dean Faherty noted that “class rankings are very important to some students, and some employers, and there’s nothing we can do about that”. When Erinn asked Dean Faherty to consider making an exception in light of the unique content of the Indigenous Summer Intensive and Call to Action #28, Assistant Dean Faherty said that this matter was “not up for discussion”. It is not clear why the Faculty does not simply require that any student who wishes to avail themselves of the enhanced offerings of another Canadian law school in this area must commit to maintaining the minimum credit requirement each semester.

As law students, we are repeatedly reminded that we ought to be proud of the fact that we are entering a self-regulating profession. Lawyers have an important role to play in reconciliation, and our exposure and readiness to participate in this process should begin in law school.  While U of T has taken some steps to recognize Call to Action #28, there is much more that it can do – and hopefully it will after the Faculty’s Truth and Reconciliation Committee gives its report in the fall. However, it is important that we, as future members of the legal profession, challenge ourselves now to seek out opportunities to respond to Call to Action #28—whether the Faculty chooses to incentivize it or not.


[1] The deadline to apply for this course is Friday, July 22nd at 10 a.m. Students may contact Assistant Dean Faherty for an application form.
[2] The author contacted Assistant Dean Faherty for information on what criteria are applied by the Faculty in order to determine whether a course satisfies the ICT or Perspective Course Requirements. Assistant Dean Faherty did not respond prior to publication. Accordingly, the descriptions in this article are drawn solely from the Academic Handbook .
[3] Erinn Wattie and Alexis Giannelia (JD/MGA 2019) went on to participate in the UVic intensive program in May 2016 and were the only Canadian law students in the course who were not receiving full transfer credits for their work.  Erinn and Alexis plan to write an article for UV in the fall about their experience at UVic.

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