Aboriginal lawyers stride in footsteps of legal pioneer

Former lieutenant-governor Steven Point isn’t sure most British Columbians will remember his pal Alfred Scow. He doubts if many people even realize that Scow was the province’s first — and, for a long time, only — aboriginal judge.

Scow died in February at 86. He represented a beacon for many indigenous people hoping to enter the legal field. However, challenges still impede the progress of aboriginal people, both within the profession and the justice system in general.

Amid the tumultuous years of the 1960s, Scow became the first indigenous student to graduate from law school in British Columbia. Soon after, he would achieve another first: the first indigenous lawyer to be called to the bar.

“He was the only one, and the big thing that sticks out is: Why is that? Why is there only one native judge?” asked Point, a himself an ex-lawyer and, in the generation that came after Scow, also one of only a few aboriginal judges.

Restoring ‘faith in the system’

Nearly 50 years ago, indigenous students faced renouncing their Indian status in order to receive any kind of university degree or professional training.

If they did, they could no longer live on reserve, vote for chief or inherit property from indigenous lands.

The legal profession, in particular, was off-limits for aboriginal people. Forget becoming a lawyer — First Nations could not even hire a lawyer until 1951, after sections of the Indian Act were repealed.

Scow timed his graduation perfectly. By 1961, the law had changed so he could retain his Indian status while still receiving his diploma.

By becoming the first indigenous lawyer and rising through the legal ranks, Scow made giant strides in a profession where representation is key.

Aboriginal people were—and continue to be—over-represented before the court as defendants. Even in 2007, 20 per cent of British Columbia’s prisoners were aboriginal.

However, as a role model and mentor, Scow helped usher indigenous people into the courtroom as lawyers and judges.

Point said Scow’s mere presence also marked a shift towards a legal system less biased against indigenous peoples.

“We’re growing up with institutions that deal with native people but don’t have native people. So is it important for them to have a native lawyer? Yeah,” said Point.

Listen: Steven Point talks about a courtroom experience he’ll never forget  [audio:https://thethunderbird.ca/files/2013/03/Steven-Points-Story.mp3]

As a lawyer, Point remembers seeing aboriginal defendants with “no faith that the system was going to be fair.” But when he ascended to the judge’s bench eventually and became a colleague of Scow’s, he noticed some of the defendants acting strangely in his presence.

“Natives who came to court would wave at me. You don’t see anybody waving at judges, right? But I was their judge.”

This attention gave Point a great sense of responsibility. “I was an interpreter almost, a guide, more than a lawyer.”

Booming business

But indigenous lawyers and judges play an even more crucial role today. They aren’t just advocates or interpreters for the over-represented First Nations in the courts, as Scow was. The generation that has followed him brings their personal insight to the new, hot-button resource issues concerning First Nations’ communities.

In the 1990s, a series of Supreme Court decisions affirmed the land and resource rights of First Nations people, also known as aboriginal title.

Suddenly, aboriginal law grew into a multi-million dollar business. Negotiations over issues like fishing rights and development in First Nations’ traditional territory provided openings for lawyers to work on indigenous issues.

“Each band and Metis council and tribal council—they deal with legal issues every day. It’s probably one of the biggest growing areas of law in Canada,” said Darwin Hanna, a partner at the aboriginal law firm Callison & Hanna.

Hanna opened his own practice in 1996. Since then, he has noticed dramatic changes in the legal needs of his clientele.

“When we first started practicing, our clients did not have access to timber, the land or even sharing of the profits from mining and hydro projects,” said Hanna. “Now it’s a matter of daily business where our clients are involved with deals with the Crown with respect to forestry.”

For Hanna, having “effective representation” in these cases involves aboriginal judges and lawyers like Scow, who understand the First Nations’ shared history and culture.

“I think it’s basically a human-rights issue in that you have a right to be represented by your own people,” said Hanna.

Meeting the need

However, even in the decades since Scow shattered the profession’s glass ceiling, the legal system system still doesn’t have indigenous lawyers in anything like the proportions of First Nations in the general population.

In 2012, the Law Society of British Columbia released a report saying aboriginal people represented only 1.5 per cent of lawyers in British Columbia.  That statistic fell short when compared to the 4.6 per cent of the overall population in British Columbia who are indigenous—not to mention the 23 per cent of federal prisoners who are aboriginal.

What’s worse, according to the law society, was that the percentage of aboriginal lawyers remained stagnant over a 10-year period, from 1996 to 2006. Not enough indigenous people were entering and staying in the profession.

For Rosalie Wilson, an aboriginal lawyer from the Okanagan Valley, those statistics actually motivated her to go to law school.

“I was determined all the more because of those statistics,” she said.

Wilson felt herself “walking in the footsteps of giants” as she started to pursue a law degree at Scow’s alma mater, the University of British Columbia, in 2000.

Nevertheless, during her first year, Wilson was struck with a sense of “culture shock.”

“The limited support that First Nations students experience while being away at university is tough. A lot of nations have heavy family values,” said Wilson.

“It does become challenging, because you’re isolated from the normal support systems that you usually rely on to get you through more challenging times.”

Blending Western and indigenous mindsets

Aboriginal students also grapple with incorporating their own cultural viewpoint with that of the Canadian legal system, which is based upon British common law.

For instance, while the Western legal system prioritizes “hard,” phsyical evidence, indigenous groups have argued for oral histories as evidence.

“What law school tended to teach me was not necessarily compatible with what I believe as an indigenous person,” said Wilson. “But as an indigenous lawyer, I have to have respect for that system and be knowledgeable of that system.”

While Wilson was a student, law schools could choose how much, or how little, aboriginal law to teach. Now, Canadian law schools are required to adopt indigenous legal studies in order to receive accreditation.

In 2012, for instance, the University of British Columbia instituted a mandatory, semester-long course to teach first-year students about aboriginal law.

Listen: Former law student Leah George-Wilson on changing the school curriculum [audio:https://thethunderbird.ca/files/2013/03/Leahs-story.mp3]

UBC’s law school anticipates that next year’s graduating class will have the largest indigenous group yet. More than 20 students are expected to graduate out of a class of approximately 180.

Entering the field

Law school is only the first hurdle in an indigenous lawyer’s career.

Once out in the field, law graduates often must find a position “articling,” or training with a firm, before they can be called to the bar.

Whereas, in judge Scow’s early years, a more blatant racism impeded lawyers from seizing opportunities, nowadays a less obvious, systemic racism runs through the legal field, according to Hanna.

“I think it’s just so subtle,” said Hanna. “No one said ‘We’re not going to hire you because you’re aboriginal.’”

To make it in the legal world requires referrals and contacts, said Hanna.

In the end, Hanna said, if anything is going to change, it’s not simply about educating indigenous students in law—it’s equally about educating the legal leadership.

“It’s just trying to provide that education to the leadership about aboriginal lawyers that can do the same work if not better,” said Hanna. “In the law profession, it’s all about connections, about who you know, and at the same time it’s about reputation and doing the work.”

Building a reputation means fighting myths about indigenous lawyers, according to Point. During his time working for the UBC law school, he heard a number of rumours devaluing indigenous students’ accomplishments.

One rumour claimed aboriginal students received special admissions criteria to enter law school. Another perpetuated the idea that these lawyers had received a less rigorous “Indian law degree.”

Contrary to the myths, indigenous students tackle the same classes, exams and criteria as other students.

“I think some of the kids were finding a hard time getting articles, because some of the law firms felt that they didn’t have the same law degree as other students did,” said Point. “A lot of kids just went back home and started to work in other areas.”

Point believes that the integration of more indigenous voices will ultimately change the profession for the better. The simple addition of a single fresh perspective—like Scow’s—helped transform the Western mentality of the courtroom.

“If you’ve got beef stew, and you put ginger in it, it changes the stew. When Alf Scow got into the legal profession, it changed because of his presence,” said Point. “He would bring to that his value system, which is entirely different from the Western system.”

Yet, one presence is not enough. For the legal “stew” to truly change—and for proper representation to be achieved– more indigenous voices are needed, according to Point.

“In my view, that enriches the system. It improves it and makes it more meaningful.”