1. See e.g. Inuit Tapirisat of Canada, Nunavut: A Proposal for the Settlement of Inuit Lands in the Northwest Territories (unpublished, 1976)Google Scholar; Inuit Tapiritsat of Canada, Completing Canada: Inuit Approaches to Self-Government (Kingston: Institute for Intergovernmental Relations, Queen's University, 1987)Google Scholar; Dacks, G., “Nunavut: Aboriginal Self-Determination through Public Government” Working Paper from Royal Commission on Aboriginal Peoples (Ottawa: the Commission, 1994)Google Scholar; Dickerson, M. O., Whose North: Political Change, Political Development and Self-Government in the Northwest Territories (Vancouver: University of British Columbia Press, 1992)Google Scholar; Merritt, J. et al. , Nunavut: Political Changes and Manifest Destiny (Ottawa: Canadian Arctic Resources Committee, 1989)Google Scholar.

2. Paul Okalik was called to the Bar of the Northwest Territories in February, 1999. Within the following month, he was elected as Member of the Legislative Assembly for Iqaluit West, then selected as the first Premier of Nunavut. His legal career is on hold.

3. See Valencia-Weber, G., “Observations of the Evolution of Indian Law in the Law Schools. Part II: Why and How We Teach Indian Law” 26 N. Mex L. Rev. 160 at 163Google Scholar.

4. See Canada Law Reform Commission, infra note 79.

5. Arthurs, H. W., “The Political Economy of Canadian Legal Education” (1998) 25:1Journal of Law and Society 14CrossRefGoogle Scholar.

6. See e.g. Slattery, B., “Aboriginal Sovereignty and Imperial Claims” (1991) 29 Osgoode Hall L.J. 681Google Scholar; or Dickason, O. & Green, L., The Law of Nations and the New World (Edmonton: University of Alberta Press, 1988)Google Scholar.

7. See e.g. Weber, M., Economy and Society, vol. 2 (Berkeley: University of California Press, 1978)Google Scholar; Bourdieu, P., “The Force of Law: Towards a Sociology of the Juridical Field” (1987) 38 Hastings L. Rev. 805Google Scholar; Dezalay, Y. & Sugarman, D., eds., Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets (London: Routledge, 1995)Google Scholar.

8. See e.g. Belley's, J.-G. review article, “Law as Terra Incognita: Constructing Legal Pluralism” (1997) 12:2C.J.L.S. 17 at 18–19CrossRefGoogle Scholar: “We also see a significant consensus amongst the authors in favour of an understanding of law, and hence, legal pluralism as specifically cultural realities. Law and legal pluralism are no longer matters of regulated behaviour systems, they argue. Instead, they reside in the discursive sphere of language and symbolic representations…[T]his shift reveals the point to which these cultural representations are both socio-political stakes and contested notions.” Similarly, Valverde, M. et al. Democracy in Governance: A Socio-Legal Framework: A Report for the Law Commission of Canada on Law and Governance Relationships (Ottawa: Law Commission of Canada, 1999)Google Scholar posits, following Foucault, “A governance perspective can open up new questions by focussing on languages and discourses that make certain entities actionable, or governable, and on procedures, such as statistics, that have been developed to produce not only knowledge of pre-existing objects but even the objects themselves” at 5.

9. For example, in the popular realm, the “ranking” of law schools by Maclean's or the content of students' assessments of their legal education in Canadian Lawyer are both examples of the persistence of the idea of a unified legal profession and a single standard by which it can be measured.

10. See generally e.g. Nelson, R. L. & Trubek, D., “New Problems and New Paradigms in Studies of the Legal Profession” in Nelson, R.L., Trubek, D. M. & Solomon, R. L., eds., Lawyers' Ideals/Lawyers' Practices: Transformations in the American Legal Profession (Ithaca: Cornell University Press, 1992) at 1Google Scholar; Arthurs, H.W., “A Little Knowledge is a Dangerous Thing: Will the Legal Profession Survive the Knowledge Explosion?” (1995) 18 Dalhousie L.J. at 295Google Scholar.

11. Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (1993) art. 23.1.1 [hereinafter Nunavut Land Claim Agreement].

12. The Nunavut Implementation Commission in Footprints in New Snow (Iqaluit: 1995)Google Scholar, identified minimum employment targets as 50% Inuit representation by 1999, and representative levels by 2021. Recommendation 6-8 and 6-9.

13. Economic Planning Section, Economic Development and Tourism, Government of the Northwest Territory, “Sectoral Employment 1991” in Division: A Comparison of Economic Statistics Between Nunavut and the Western Arctic (Yellowknife: GNWT, 1995)Google Scholar. According to that study, 3840 individuals are employed working for the government, or in health or education. In all the other occupations considered, 3850 people were employed.

14. Nunavut Land Claim Agreement, supra note 11, art. 24.

15. See, e.g. Journal of Legal Pluralism 1997 - Special Issue on African Traditional Leadership.

16. According to the 1999 Nunavut Labour Force survey, the rate of labour force participation was shown to have increased in the last ten years. However, rates of unemployment were still the highest in Canada: 20.7% of the labour force according to national criteria, and 35.6% of those who claimed to want a job. Among Inuit, the rate of unemployment was more than ten times the rate of unemployment among non-Inuit: 28% overall, vs. 2.7%. There is also a significant difference between communities, as Iqaluit (the capital, and largest centre, boasts an unemployment rate of 10.4% while Gjoa Haven, a community of 600, suffers through an unemployment rate of 39%. Nunavut Labour Force Survey, Overall Results and Basic Tables, online: Nunavut Bureau of Statistics, <http://www.stats.gov.nu.ca> (date accessed: 10 September 1999).

17. Nunavut Unified Human Resources Development Strategy, reprinted in Footprints, supra note 12, App. 1 at 24.

18. Statistics from the Baffin Divisional Board of Education Annual Report 1995/96 show a significant improvement over the last fifteen years, but overall percentages of students finishing school remain appalling low. In 1981/82, out of 2479 students enrolled only 7 graduated from a general level program. By 1995/6, the last year for which statistics are available, 25 students graduated from the general level and 12 from the academic/excellence program, out of 3699 enrolled.

19. See Duffy, R. Quinn, The Road to Nunavut (Montreal: McGill-Queen's University Press, 1988)Google Scholar, especially “Providing an Education”.

20. There is relatively little record of Inuit response to the introduction of schools in Nunavut. One of the few sources I have discovered is Pitseolak, P. & Eber, D. H., People from our Side: A Life Story in Photographs by Peter Pitseolak and Oral Biography by Dorothy Harley Eber (Montreal: McGill-Queen's University Press, 1993)Google Scholar. Pitseolak records a “consultation process” where he was selected by two white administrators and asked, in secret, whether his community was willing to have a school. Although he agreed, he records very mixed reactions at the prospect of a school in terms of its potential impact on the community (ibid. at 102-3).

21. Duffy, supra note 19 at 102.

22. Nunavut Land Claim Agreement, supra note 11 art. 37.5

23. The GNWT is the largest regular contributor in the area of education and training. In 1996-97, it invested $101.4 million dollars in Nunavut. The Government of Canada routinely contributes by way of Regional Bilateral Funding Agreements, amounting to $6 million in 1996-97, and the Aboriginal Workforce Initiative will spend $2 million over the next 3 years. To deal with “incremental” costs, that is, special expenditures defined as being attributable to territorial division, the Nunavut Secretariat Canada is contributing an additional $39.8 million between 1996/97 and 1999/2000. The NITC will spend another $1.6 million on human resource planning and training initiatives in the next three years. See NUHRDS, supra note 17 at 31.

24. This projection was based on a model of government-as-we-know-it, adjusted in scale and some particulars to reflect the recommendations of the Nunavut Implementation Commission.

25. See Brown, L. A., “Community and the Administration of Aboriginal Governments”, CD ROM: 7 Generations - Research Studies for the Royal Commission on Aboriginal Peoples, 1996Google Scholar. Brown identifies as a common pitfall of human resource development in self-government struggles the tendency, inside and outside Aboriginal communities, to “blame the victim” and attribute many of the potential problems in implementing self-government on the lack of qualified personnel. Based on the study of twenty eight Aboriginal organizations, Brown suggests that this cycle of blame “masks other possible explanation for issues in implementing self-government that may be more structural or systemic in nature.”

26. See e.g. George, J., “How to pay for Nunavut training in the post-NUHRDS future” Nunatsiaq News (24 September 1999)Google Scholar.

27. As of September 1999, there are eight lawyers working for the territorial government in a legal capacity, with two more hires planned in the immediate future. There are at least three other government employees who are lawyers working in non-legal capacities.

28. Qallunaat is the Inuktitut term to describe non-Inuit. For one approach to translating the term, see Dorais, L. J., Language in Inuit Society (Iqaluit: Arctic College, 1990)Google Scholar. The singular is qallunaaq.

29. For interesting reflections on some challenges posed by an asymmetrical lawyer-client relationship, see Lopez, G., “An Aversion to Clients: Loving Humanity and Hating Human Beings” (1996) 31 Harvard Civil Rights-Civil Liberties L. Rev. 315Google Scholar; for an article paying particular attention to the consequences of those challenges for the client, see White, L. E., “Subordination, Rhetorical Survival Skills and Sunday Shoes” (1990) Buffalo L. Rev. 1Google Scholar.

30. See e.g. Harring, S., “Rich Men of the Country: Canadian Law and the Land of the Copper Inuit” (1989) 21 Ott. L. Rev. 1Google Scholar; Grant, S., Sovereignty or Security: Government Policy in the Land of the Copper Inuit, 1936–1950 (Vancouver: UBC Press, 1988)Google Scholar.

31. See generally (although there is nothing on the Eastern Arctic in this collection) McLaren, J., Foster, H. & Orloff, C., eds., Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre, 1991)Google Scholar.

32. See generally e.g. Canada, Department of Justice. “Options for Court Structures in Nunavut: A Discussion Paper” (Ottawa: Department of Justice, 1997)Google Scholar; Pauktuutit, , “The Administration of Justice in Nunavut” 1996Google Scholar [unpublished, discussion paper] Nunavut Bar Association, “The Administration of Justice in Nunavut” supra note 12; Nunavut Social Development Council, Justice Conference (May 1997).

33. Options for Court Structures in Nunavut, ibid.

34. Community Justice Conferences held in a variety of Nunavut communities under the auspices of the Government of the Northwest Territories Community Justice Initiative and under the Department of Justice of Nunavut focused on developing the role of community justice committees in each community, e.g. North Baffin Community Justice Conference, and Iqaluit Justice Conference in March, 1996. In Iqaluit, a Youth Justice Committee has been in operation for at least eight years.

35. The Nunavut Implementation Commission recommended the following: unification of the Territorial and Supreme Courts, transfer of prosecutions from the Federal to the Territorial Crown, strengthening the Inuit complement in the RCMP; considering options ranging from provision of penitentiary services for federally sentenced offenders to supporting pilot projects including outpost camp living for prisoners or community-driven treatment programs for sexual offenders. Supra note 12 at pp. 238-50.

36. Nunavut Arctic College started an Interpreter/Translator certificate and diploma program in 1987. See Sammons, S., “Challenges in minority language programming in Canada's Eastern Arctic: the training of Aboriginal language interpreter/translators” (1993) 38:1META 46CrossRefGoogle Scholar.

37. Original members were Susan Enuaraq, Lazarus Arreak, Philip Paneak, Peter Kusugak, Francis Piugattuk, Joe Kunuk, Peter Brennan, Janet Armstrong, and Beverly Browne.

38. See Nunavut Law School Organizing Committee, “Nunavut Law School Statement of Principles” (Iqaluit: 1993)Google Scholar.

39. Nunavut Law School Organizing Committee, Report on Community Consultations (Iqaluit: 1994)Google Scholar. Representatives of the Committee met formally with individuals and local groups in Rankin Inlet, Cambridge Bay, Igloolik and Iqaluit, spending two or three days in each community.

40. Ultimately, for reasons understood in Nunavut as relating to changes within the Faculty at University of Ottawa, the University did not actively support the development of a law school in Iqaluit.

41. R. Eyapaise, “Nunavut Legal Education Program Concept: Developmental Stage” [unpublished, on file with author]; V. Ford, “Nunavut Legal Education Program Concept: Initial Feasibility Study” [unpublished, on file with author].

42. Nunavut Law School Organizing Committee, “Nunavut Legal Education Program - Proposal” (Iqaluit: Nov. 22, 1995)Google Scholar.

43. The amount of money that was allocated is in dispute. It was the impression of the Nunavut Law School Committee that two million dollars had been allocated towards the development of a law school (interviews, committee members including Judge Beverly Browne, January 1997 and June 1999). According to Dennis Patterson, the total amount allocated to the program was $320,000; that amount was reduced after program start-up to $280,000. There was also miscommunication about the assumptions for the funding: the College was not aware at the start that student financial assistance was also to be drawn from the program budget. (Interview and notes, Dennis Patterson, September 23, 1999).

44. Interviews with Judge Beverly Browne (18 June 1999) and Anne Crawford (11 June 1999).

45. There was some overlap between the membership of the original Nunavut Law School Organizing Committee and the new Legal Education Steering Committee; however, members of the original committee feel that the Steering Committee represented a completely distinct stage in the development of the program.

46. Arctic College offers programs including community based adult education (literacy, etc.) in almost every community. It also offers centralized professional and vocational programs like social work and environmental technology, which are offered only in one location.

47. Patterson, D., “Legal Studies in Nunavut” in Report to the Legal Education Steering Committee (Iqaluit: January 1997) at 1Google Scholar. The following discussion relies on his report.

48. Seneca College is a community college located in Toronto. The Courts Administration Program provides training to individuals filling a number of administrative roles within the criminal and civil justice system across Canada.

49. Patterson, supra note 47 at 23.

50. Courses proposed were: Introduction to Law; Traditional Inuit Methods; Computer Literacy; Written and Oral Advocacy; Interviewing and Report Writing; Criminal Law and Procedure; and Family Law and Procedure. Optional Courses were Courts and Administration of Justice in Nunavut; Civil Law and Procedure; Contracts and Business Law; Community Development; Administrative Law and Procedure; Introduction to Planning and Environment Law; and Land Claims. (See Patterson, supra note 47 at 27-8). These courses would be combined with rotating work placements.

51. History (Canadian and Northern, with a focus on Aboriginal issues); Economics, Political Science (Canadian and Northern); Sociology and Anthropology (with a particular focus on Inuit culture and society); and Psychology (especially crosscultural issues). See Patterson, supra note 47 at 30-32.

52. Criminal Law and Procedure, Civil Law and Procedure, Administrative Law and Procedure, Community Development etc. See Patterson, supra note 47 at 30-32.

53. See sources cited infra note 86.

54. Interview with Desmond Brice-Bennett (16 February 1997).

55. Interview with Francis Piugattuk (20 January 1997).

56. Susan Enuaraq, Law School Steering Committee Meeting (January 1997).

57. Judge Beverly Browne, Law School Steering Committee Meeting (January 1997), and memorandum to Dennis Patterson, on file with author.

58. e.g. Anne Crawford (30 January 1997). Court clerks and corrections guards are the only job classifications in the justice sector where there was 50% Inuit employment in 1995. See NUHRDS supra note 17.

59. Susan Enuaraq, Iqaluit; Sandra Inutiq, Iqaluit; Leetia Janes, Iqaluit; Julia Olayuk, Arctic Bay; Sarah Papatsie, Iqaluit; Pauline Pemik, Rankin Inlet; Louisa Pootoolik, Repulse Bay; Paul Quassa, Igloolik; and Helen Tologanak, Cambridge Bay.

60. Janice Braden was the instructor. There were also two teaching assistants who were law students or recent graduates.

61. A significant portion of the work done in this course has been preserved and published by Arctic College in a bilingual (English/Inuktituut) book, J. Oosten et al. eds. Interviewing Inuit Elders [forthcoming].

62. Interview with Sandra Inutiq (2 July 1999), (a student who returned North just before the end of her second year at Carleton University).

63. The account in this paragraph is based on interviews conducted in June, 1999 with Bill Riddell, Coordinator of the Legal Studies Program at Arctic College in 1997-early 1998, Sandra Inutiq, a Jump Start student who was in Ottawa for 18 months, and Siobhan Arnatisiaq-Murphy, a student in the legal studies program in the fall of 1997, and on an interview with Dennis Patterson in September, 1999. Also see Himmelman, M., “Crash course in legal system tailored to Inuit” Nunatsiaq News (18 July 1997)Google Scholar and Poitras, M., “Final Report, Legal Studies Program ‘Project Jump Start’” (21 August 1999)Google Scholar, on file at the Nunavut Court of Justice.

64. Poitras, M., Backhouse, C. & Feldthusen, B., A Proposal for the Circumpolar Nunavut Law School (Iqaluit, 1997)Google Scholar [unpublished].

65. See Nunavut Law School Society, “Nunavut Law School Proposal” (26 June 1999)Google Scholar.

66. Indeed, it has done so. The first executive was sworn in on April 1, 1999.

67. See, for example, the 1974 reforms to professional regulation in Quebec, which made all professional regulatory bodies subject to a “Professions Board” established under the Professions Code, S.Q. 1973, c.43Google Scholar. The Board had power to accredit university professional degrees and entry into the profession. See Brierly, J.E.C., “Québec - Legal Education since 1945: Cultural Procedures and Traditional Ambiguities” (1986) 10:1Dal. L.J. 5Google Scholar.

68. Nunavut Act, S.C. 1993, c. 28, s. 23. This power is, of course, subject to disallowance by the federal cabinet (s. 28), but there are a number of conventional, legal and constitutional reasons that suggest that the federal government would be unlikely to put this power to the test.

69. Currently, in order to practice in the Northwest Territories, lawyers are required to be members of the Alberta Bar. Mostly for insurance purposes, the all-white Nunavut Bar Association has voted to continue to be affiliated with the Northwest Territories and Alberta.

70. Obviously, mobility of Nunavut lawyers would be an issue unless reciprocity agreements could be struck with law societies in other jurisdictions. However, most would-be Inuit lawyers want to work in Nunavut. There is also a possibility of working out mutual recognition agreements with Law Societies in the different provinces, akin to the agreements for students from foreign jurisdictions.

71. e.g. Interview with Paul Okalik (28 March 1998); interview with Sandra Inutiq (2 July 1999).

72. Arthurs, H. W., “The Law School in University Setting” in Matas, R. J. & McCawley, D. J., eds., Legal Education in Canada (Montreal: Federation of Law Societies, 1987) 157 at 159Google Scholar.

73. Commission on Gender Equality in the Legal Profession, Touchstones for Change: Equality, Diversity and Accountability (The Wilson Report) (Ottawa: Canadian Bar Association, 1993)Google Scholar; Report on Racial Equality and the Canadian Legal Profession (Ottawa: Canadian Bar Association, 1999)Google Scholar; Report of the Special Committee on Equity in Legal Education and Practice (Toronto: Law Society of Upper Canada, 1991)Google Scholar; Timoll, A., “Black Access to the Legal Profession: The Timoll Report” (Toronto: Black Law Students Association/ Attorney General for Ontario, 1996)Google Scholar; Boyle, C., “Teaching Law as if Women Really Mattered, or, What About the Washrooms?” (1986) 2 C.J.W.L. 96Google Scholar; O'Brien, M. & McIntyre, S. “Patriarchal Hegemony and Legal Education” (1986) 2 C.J.W.L. 69Google Scholar; Lepofsky, D., “Disabled Persons and Canadian Law Schools: The Right to Equal Benefit of the Law School” (1991) 36 McGill L.J. 636Google Scholar.

74. Ibid.

75. Special Advisory Committee to the Canadian Association of Law Teachers, Equality in Legal Education…; Sharing a Vision; Creating the Pathways… (Ottawa: CALT, 1991)Google Scholar.

76. “Aboriginal” is the term used in s. 35 of the Constitution Act, 1982 to describe the Indian, Inuit and Métis peoples of Canada. It has since been endorsed by the Royal Commission on Aboriginal Peoples as an appropriate umbrella term for all the indigenous peoples of Canada. Unlike the term “First Nations”, it encompasses Inuit.

77. See Infra note 86.

78. Purich, D., “Affirmative Action in Canadian Law Schools: The Native Student in Law School” (1987) 51 Sask. L. Rev. 79 at 81Google Scholar. Purich relies on statistics prepared by the Native Law Centre which he considered more accurate - and which were higher - than the numbers calculated by Statistics Canada in the 1981 Census. Statistics Canada estimated that there were 70 “persons of Native ancestry” practicing law in Canada in 1981.

79. Report of the Aboriginal Justice Inquiry of Manitoba, The Justice System and Aboriginal People, v. 1 (Winnipeg: Government of Manitoba, 1991) at 658ffGoogle Scholar.: “In almost every chapter of this report, we discuss the need for Aboriginal people in Aboriginal communities to perform all the tasks within the system”; Royal Commission on the Donald Marshall Junior Prosecution Report (Halifax: 1989)Google Scholar; Royal Commission on Aboriginal Peoples, Bridging the Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services, 1996) in which Recommendation 10 at 289Google Scholar calls for, inter alia, the federal, territorial and provincial governments report annually on the numbers of Aboriginal people employed in all capacities in government departments with an interest in justice issues including difficulties in recruiting Aboriginal people and steps being taken to reduce under-representation; Buller, M. B., A Review of Legal Services to Aboriginal People in British Columbia (Vancouver: Attorney General of British Columbia, 1994) at 20Google Scholar. “Everywhere I traveled, Aboriginal people emphasized the need for an Aboriginal lawyer in their community. Aboriginal lawyers say they are inundated with Aboriginal clients and often have to refer Aboriginal clients to trusted non-Aboriginal colleagues”; Law Reform Commission of Canada, Report 34: Aboriginal Peoples and Criminal Justice (Ottawa: The Commission, 1991) in which Recommendation 3(1) at p. 29Google Scholar states: “Programs should be established to bring more Aboriginal persons into all aspects of the criminal justice system, including as police, lawyers, judges, probation officers and corrections officials. More specifically, the following steps should be taken: … (B) recruitment programs to draw more Aboriginal persons into law schools should be financially supported to a greater extent than is presently the case …”

80. There has been significant improvement in terms of the number of students enrolled over the last twenty years, so that Ruth Thompson, then a Research Associate at the Saskatchewan Native Law Centre could note in 1988 that the summer program had “clearly been successful in encouraging native people to attend law school, and in providing a means for students who would not otherwise qualify to be admitted to law school.”; Thompson, R., “The University of Saskatchewan Native Law Centre” (1988) 11 Dalhousie L.J. 713Google Scholar. Statistics (based on the number of Native Law Centre graduates) showed the number of law degrees earned by Aboriginal students rising from two in 1981 to 30 in 1992. See Mazer, B. & Peeris, M. S. G., Aboriginal Peoples and Access to Legal Education and the Legal Profession: Data and Trends (Windsor: University of Windsor Faculty of Law, 1992) at 6Google Scholar. Using a slightly different sample, i.e. self-declared Aboriginal students registering at common law schools in Canada, CLASSI records 80 Aboriginal students being registered at 17 Canadian Law Schools in 1996-97. There are not 17 common law schools in Canada, but University of Ottawa, with its separate civil and common-law faculties, is counted twice. The CLASSI data may underreport Aboriginal admissions, in that it counts only self-declared Aboriginal students who were admitted by schools in the Aboriginal category. Also, the information is a product of self-reporting and, according to CLASSI, is more indicative of broad trends than it is completely precise.

81. From 1993-94 to 1995-97, CLASSI data show the number of students registered decreased from 109 students, to 80, or from 4.9% of registrants to just over 3.6%.

82. In 1984-85, they were less than one percent of first year students and now, according to CLASSI, they constitute 3.6% of the overall student body, slightly in excess of the proportion of Aboriginal persons in the Canadian population at large.

83. This represents my count of Aboriginal professors, based on author survey described below at note 106.

84. Aylward, Caro discusses the impact of this under-representation in “Adding Colour: A Critique of: ‘An Essay on Institutional Responsibility: The Indigenous Blacks and Micmac Programme at Dalhousie Law school’” (1995) C.J.W.L. 470 at 497Google Scholar. See also Allen, A.L., “On Being a Role Model” (1990–1991) 6 Berkeley Women's Law Journal 22Google Scholar.

85. But see Crenshaw, K.W., “Toward a Race-Conscious Pedagogy in Legal Education” (1989) 11 National Black L.J. 1 at 2Google Scholar. Crenshaw identifies three major ways in which classroom dynamics can put racial identity in issue in uncomfortable ways: “the problem of objectification” where rational, objective commentaries on law understood as abstract rule application are preferred to “emotional denunciations” based on experience; alternately, an overemphasis on the subjectivity of students of colour in “testimonial” mode, where a minority student is placed in a special category of experience, without relating that students' experience to a dominant legal framework that where anti-racism is not the norm; and alienation of minorities through subsurface racial images: black rapist, white capital gains strategist. Also see Ellsworth, E., “Why Doesn't This Feel Empowering? Working through the Repressive Myths of Critical Pedagogy” (1989) 59 Harvard Educational Review 297CrossRefGoogle Scholar.

86. Much of the research in this area appears to relate directly to the experience of women students, particularly pursuant to the Canadian Bar Association Task Force on Gender Equality in the Legal Profession. See: MacIvor, S. & Nahanee, T., “Aboriginal Women in the Legal Profession”, Appendix 11 to the Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993)Google Scholar; Sparks, C., “Women of Colour in the Legal Profession: A Panoply of Multiple Discrimination”, Appendix 10 to the Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993)Google Scholar; J. Hagan and Zimmerman, S., “Issues of Gender and Multiple Discrimination in Canadian Law School Settings”, Appendix 9 to the Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993)Google Scholar. Hagan and Zimmerman reconfigured the results of a Department of Justice study of 836 third year students at ten law schools, showing high levels of discrimination experienced at the hands of other students. They hypothesized that “[i]f the experience of multiple discrimination produces unique problems for those involved, it should be reflected in especially intense feelings of anger and stress [in response to the experience of discrimination] among minority women. This is exactly the pattern we find in the comparison across groupings…” (ibid. at 13). See also, Lindberg, T., “What Do You Call an Indian Woman with a Law Degree: Nine Aboriginal Women at the University of Saskatchewan College of Law Speak Out” (1997) 9 C.J.W.L. 301Google Scholar.

87. Monture, P.A., “Now that the Door is Open: First Nations and the Law School Experience” (1990) 15 Queen's L.J. 179 at 185–86Google Scholar. Another version of this article appears in her book, Thunder in My Soul: A Mohawk Woman Speaks (Halifax: Fernwood Books, 1995)Google Scholar.

88. Siobhan Arnatsiaq-Murphy, email correspondence with author (25 June 1999).

89. See e.g. J. McLaren, “The History of Legal Education in Common Law Canada” in Legal Education in Canada, see supra note 72; Sibenik, P. M., “Doorkeepers: Legal Education in the Territories and Alberta, 1885–1928” (1990) 13 Dalhousie L. J. 419Google Scholar; Kyer, C. & Bickenbach, J., The Fiercest Debate: Cecil Wright, the Benchers and Legal Education in Ontario 1923–1957 (Toronto: The Osgoode Society, 1987)Google Scholar; Pue, W. “Common Law Legal Education in Canada's Age of Light, Soap and Water” Working Paper of the Manitoba Legal History Workshop (Winnipeg, 1993)Google Scholar; Lederman, W., “Canadian Legal Education in the Second Half of the Twentieth Century” (1971) 21 U.T.L.J. 141CrossRefGoogle Scholar; Pue, W., Law School: The Story of Legal Education in British Columbia (Vancouver: Continuing Legal Education, 1995)Google Scholar.

90. Even though the law degree is a relatively recent pre-requisite, there were earlier academic requirements for practice. Two years of university education was the requirement in most jurisdictions from about the 1920's.

91. Of course, class, race and sex were rather more explicitly acceptable as barriers to legal education in those days of institutional flexibility, than they are now. See e.g. Brockman, J., “Exclusionary Tactics: The History of Women and Visible Minorities in the Legal Profession in British Columbia” in Foster, H. & McLaren, J., eds., Essays in the History of Canadian Law, vol. 6, (Toronto: Osgoode Society, 1995)Google Scholar.

92. See McLeod, D., “Legal Process and Change in Canadian Law Schools” (Toronto, 1996)Google Scholar [unpublished copy on file with author].

93. For a very useful analysis of the significance of the rise of the notion of a legal science, and its integrating effects within the American federation, see Friedman, Lawrence M. and Teubner, G., “Legal Education and Legal Integration: European Hopes and American Experience” in Cappelletti, M., Seccombe, M. & Weiler, J., eds., Integration through Law: Europe and the American Federal Experience (Berlin: Walter de Gruyter, 1986)Google Scholar.

94. See e.g. Zimmerman, R., “Savigny's Legacy: Legal History, Comparative Law and the Emergence of a European Legal Science” (1996) 112 L.Q.R. 576Google Scholar. Zimmerman argues that academics, by bringing themselves closer to the demands of the profession and being informed by a historical/ comparative perspective, have the potential to promote a model of “organic” legal scientific development on a pan-European basis.

95. de Sousa Santos, B., “Toward a Postmodern Understanding of Law” in Toward a New Common Sense: Law Science and Politics in the Paradigmatic Transition (New York: Routledge, 1995) esp. at 72–75Google Scholar.

96. Today, there is no federal mandatory curriculum. Each provincial Law Society specifies a handful of very basic courses that are required in order for a school to be accredited by that law society.

97. McLaren, supra note 89 at 135. He continues at 136, “…What the curricular flexibility has meant is that each school has been able to address its particular objectives, its academic and professional strengths and the political, social and economic conditions in the jurisdiction in which it is located and to make educational policy decisions reflecting to some extent those considerations.” When the locally-regulated profession was in control of the educational process, the question of local responsiveness tended to take rather a back burner. With the initiation of a period of curricular flexibility in the context of uniform institutional location, it became the universities' role to mediate (or not) localized demands regarding appropriate legal education. This is a subject I take up in detail below.

98. See e.g. Consultative Group on Research and Education in Law, Law and Learning (Ottawa: Social Sciences and Humanities Research Council of Canada, 1983)Google Scholar; and McLaren, Lederman, Kyer and Bickenbach, supra note 85.

99. See also Arthurs on professional ideology, supra note 72 at 161; Kennedy, D., Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (Cambridge: Afar, 1983) at 23ff.Google Scholar

100. Thornton, M., “Technocracy and Gender in the Law School” (lecture at Osgoode Hall Law School, October 1997)Google Scholar.

101. Arthurs, supra note 72 at 161.

102. For a current example, see e.g. Jenish, D., “The Yankees Come Calling: US Firms are chasing the cream of the crop at three Canadian Law Schools” Maclean's 112:19 (10 May 1999) at 46Google Scholar, part of a cover issue on “Courting the Class of '99” citing a significant increase in the extent of American recruiting in the last three years in Canada, and in particular, “top” students being wooed by significantly higher salaries. According to this article, the “leading firms” in Toronto and Montreal have now begun to recruit across Canada.

103. See Arthurs, supra note 5; Arthurs, H. W. & Kreklewich, R., “Law, Legal Institutions and the Legal Profession in the New Economy” (1996) 34 Osgoode Hall L.J. 1 at 44–60Google Scholar; Thornton, supra note 100.

104. One study for the C.D. Howe Institute points to a significant increase in the number of professionals permanently emigrating from Canada to the United States: 1743 a year, in the period between 1982-89, increased to 2689 in the period 1990-96. Among post-1990 graduates from professional programs in Canada, a full 11% ended up in America. DeVoretz, D. & Lareya, S., cited in “Where the Grass is Greener” The Economist (24 July 1999) (Canada Survey)Google Scholar.

105. Université du Québec à Montréal and Carleton stand as clear counterexamples to anyone who wishes to make this argument.

106. In the course of my research, I sent a short survey to the Directors of Admission at every Canadian law school (18 schools, not including Carleton and UQAM and counting University of Ottawa as only one school). As of July 15, 1999 I had received responses from eight schools (Osgoode Hall, Alberta, Manitoba, Moncton, Saskatchewan, Sherbrooke, Western and Victoria) [Hereinafter “author survey”]. In the survey I asked the following six questions:

1. Does your school have any special admissions program for Aboriginal students?

2. Does your school offer courses in Aboriginal Law? What are they called?

3. Does your school have any kind of term program in an area relating to Aboriginal law?

4. Does you school offer any ongoing tutorial or academic support program for Aboriginal students? Is there a general academic support program at your school?

5. Does your school offer any kind of cultural support program for Aboriginal students? Please describe briefly (e.g. elders visits etc.)

6. Does your school currently have any tenured or tenure track Aboriginal faculty members? Please name them.

Although this data is less than comprehensive, I have included the responses because they contribute to an impressionistic picture of the state of support programs and in order to document, as far as the data allows, initiatives taken to date.

107. See Bourdieu, P. & Passeron, J.-C., Reproduction in Education, Society and Culture, trans. Nice, R. (London: Sage, 1990)Google Scholar, especially “Examination and Unexamined Exclusion” at 152ff.

108. Of graduates of the Saskatchewan program 78% went on to complete their LL.B. See Thompson (1988) supra note 80.

109. Bourdieu & Passeron, supra note 107 at 148-49

110. Ibid. at 153.

111. Every school that responded to my survey had a special admissions program which included recruitment of Aboriginal students (author survey).

112. Most law schools give different criteria numerical weight. There is significant variation between the types of weightings done by different university. For a qualitative analysis of the process of evaluating candidates at four Canadian law schools, see Tong, D., “Gatekeeping in Canadian Law Schools: A History of Exclusion, the Rule of “Merit”, and a Challenge to Contemporary Practices” LL.M. Thesis, University of British Columbia, 1996Google Scholar, [unpublished], online: http://www.law.ubc.ca/handbook/gradstudies/list3.html.

113. See Browning, B. G., “A Walk Through the Black Forest or A Study of Criteria Effectively Available For The Selection of Students to Faculties of Law” in Legal Education in Canada at note 72Google Scholar. Tong, supra note 112, observed that the law school admissions committee members she interviewed relied heavily on their perceptions of past experience in predicting future law school success of applicants. Despite this, none of the four law schools were able to provide the author, as requested, with any systematic studies or reports analyzing its students' academic performance in first year law school based upon their entering GPA and LSAT scores.

114. See B. Mazer & S. Peeris, supra note 80 at 80. This study examined the performance of LSAT writers in 1987-88, and 1988-89 according to ethnicity. The mean score for Aboriginal persons taking the test was 23.2, and the mean score of all LSAT writers was 30.7 and 31, in 1987-88 and 1988-89, respectively. Generally, see Powell, B. & Steelman, L. Carr, “Equity and the LSAT” (1983) 53:1Harvard Educational Review 32CrossRefGoogle Scholar; and Neallni, S., “Women of Colour in the Legal Profession: Facing the Barriers of Race and Sex” (1992) 5 C.J.W.L. 148 at 153ffGoogle Scholar.; and Hathaway, J. C., “The Mythical Meritocracy of Law School Admissions” (1984) 34 Journal of Legal Education 86 at 93Google Scholar; White, D. M., ed., Towards A Diversified Legal Profession: An Inquiry into the Law School Admission Test, Grade Inflation, and Current Admissions Policies (New York: National Conference of Black Lawyers, 1981) at 149–181Google Scholar.

115. See Tong, supra note 112.

116. See Carter, R., “University of Saskatchewan Program of Legal Studies for Native People” (1980) 4 Can. Community L.J. 28Google Scholar; Deloria, S., “Legal Education and Native People” (1974) 38 Sask. L. Rev. 22Google Scholar; MacKinnon, P. & Rhodes, P., “The First Canadian Program of Legal Studies for Native People” (1974) 38 Sask. L.Rev. 40Google Scholar; Purich, supra note 78; Thompson, supra note 80; MacAulay, H., “Improving Access to Legal Education for Native People in Canada: Dalhousie Law School's I.B.M. Program in Context” (1991–1992) 14 Dal. L.J. 133Google Scholar; Devlin, R. F. & Mackay, A. W., “An Essay on Institutional Responsibility: The Indigenous Black and Micmac Programme at Dalhousie Law School” (1991–1999) 14 Dal. L.J. 296 at 300–01Google Scholar.; and Aylward, supra note 84.

117. See Henderson, W. J., “Implications for Affirmative Action Admissions After Bakke: Analysis of Academic and Bar Performance of Council on Legal Education Opportunity Fellows 1968–1978” (1980) 7–8 Black L. J. 108Google Scholar.

118. See Deloria, supra note 116. He notes that at the time the American Indian Law Centre was established in 1967, only five Indian law students had been identified in that country.

119. Deloria, supra note 116 at 36.

120. Interview with Ruth Thompson (27 May 1997).

121. All but one of the schools which responded to my survey had academic support programs (the last school did not answer this question). Two schools restricted the programs to special admissions students; one school had academic support for all students. Four schools did not mention whether there were any restrictions on students accessing support programs.

122. Universities of Saskatchewan, Alberta and Victoria had some functions organized on an ad hoc basis for purposes of cultural support. Author survey.

123. See e.g. MacIvor and Nahanee, supra note 86.

124. Five of the responding schools had more than one course dealing with Aboriginal issues. Two other schools had one course; one had none. Author survey.

125. Osgoode Hall Law School has a term program in Indigenous Lands and Government. University of Victoria is also developing a term program. Author survey.

126. Chartrand, L. & Eansor, D., “Selecting and Educating Lawyers for a Changing Society: A Comparative Study of Admissions, Law School Environments and Careers of Law Graduates” (University of Ottawa, 1993) at 3Google Scholar [unpublished]. Cited in Tong, supra note 112. Chartrand and Eansor found that “Aboriginal respondents gave the highest rating (92% of all Aboriginal respondents) to the ‘opportunity to be of service to society’ as an important reason for going to law school.” Furthermore, when respondents were asked whether groups who have been underrepresented in the legal profession have an obligation to work with members of the groups to which they belong, the Aboriginal respondents represented the highest percentage of any group, with 53.9% in agreement.

127. A noteworthy recent example is the initiative by the Law Society of British Columbia to institute an examination on a wide array of “core” subjects, including “commercial law, company law, criminal procedure, family law, real estate law, wills and estates law, civil litigation, administrative law, ethics/professional responsibility, and tax law” which students would have to take before entering the bar admission program (Profession Legal Training Course—PLTC) in the province. See Law Society of British Columbia, “Credentials Committee moves forward on PLTC entrance exam”, March-April 1999Google Scholar.

128. It appears that often, the design of equality-enhancing programs reflects a certain ideological convergence between the United States and Canada, which is disturbing since, among other differences, equality programs have a much narrower legal basis there. Note, for example, that the chapter on Discrimination and Affirmative action in the leading Canadian treatise, Tarnopolsky, W. S. & Pentney, W. F., Discrimination and the Law, 2d ed. (Toronto: Carswell, 1996)Google Scholar, of which over one third is a discussion of American case law concerning the legality of, and rationales for, affirmative action in the United States. In particular see the discussion at pp. 4-79 and following. Obviously, also, the degree of convergence should not be overstated as there are a number of Canadian initiatives—other than the Land Claims—which far outstrip many American exemplars. See, for example, Sheppard, C., Litigating the Relationship between Equity and Equality (Toronto: Ontario Law Reform Commission, 1993)Google Scholar.

129. 98 S.C. 2733 (1978). See also United Steelworkers v. Weber, 99 S.Ct. 2721 (1979). The United States Supreme Court has steadily moved away from this high water mark: see especially Adarand Constructors v. Pena, 115 S.Ct. 2097 (1990) and City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989). Hopwood v. State of Texas (1996) 78 Fed. Rep., (3d.) 932 clearly goes further than the United States Supreme Court (see concurring opinion of Weiner J.).

130. Section 15(2) of the Canacian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, has established the legality of programs specifically designed to promote the amelioration of the conditions of disadvantaged individuals or groups. This provision permits, at least potentially, quite a wide range of institutional arrangements directed towards the promotion of equality.

131. Bakke, supra note 129. Brennan J. writes at 2782 of the “cardinal principle” that “racial classifications that stigmatize—because one race is inferior to another or because they put the weight of the government behind racial hatred and separatism—are invalid without more”. The stigma criterion occurs in Canadian jurisprudence as well: see reasons of Cory J. in Egan v. Canada, (1996) 12 R.F.L. (4th) 201 at 266.

132. Bakke, supra note 129. Brennan J. at 2784.

133. Bakke, supra note 129. Brennan J. at 2792.

134. See, for example, Lewis Klar from the University of Alberta in the June, 1998 issue of Canadian Lawyer, responding to a student who did not want to be associated with “inferior” Aboriginal students.

135. See e.g., Abele, F., Gathering Strength (Calgary: The Arctic Institute of North America, 1989)Google Scholar, for an insightful micro-level assessment of training programs for Native workers in the Northwest Territories, or Battiste, M. & Barman, J., eds., First Nations Education in Canada: The Circle Unfolds (Vancouver: UBC Press, 1995)Google Scholar.

136. Of course, Inuit students would be very unlikely to be effectively served by a committee of this kind at a southern law school: geographical distance and linguistic and cultural barriers make communication, let alone control, very difficult.

137. See Aylward, supra note 84 at 488-90 and Devlin and Mackay, supra note 116.

138. One analysis of why this marginal status can be counterproductive in efforts to decolonize the university is Mohanty, Chandra Talpade, “On Race and Voice: Challenges for Liberal Education in the 1990's” in Thompson, B. W. & Tyagi, S., eds., Beyond a Dream Deferred: Multicultural Education and the Politics of Excellence (Minneapolis: University of Minnesota Press, 1993)Google Scholar. For an analysis of the structural nature of such marginal status, see text accompanying note 69 in Brown supra note 25.

139. See Peller, G., “Race Consciousness” (1990) Duke L.J. 758Google Scholar for a discussion of the emergence and importance of this “integrative ideal” as the model for race relations through a contrast with the Black nationalist critique of American society which was contemporaneous to the civil rights movement.

140. Report of the Aboriginal Justice Inquiry of Manitoba, supra note 79.

141. Ibid. at 658-59.

142. Report of the Task Force on Gender Equality in the Legal Profession, recommendation 2.23; Recommendations on Racial Equality in the Canadian Legal Profession, available at <http://www.cba.org.>

143. Royal Commission on Aboriginal Peoples, Report, v. 2, (Ottawa: Supply and Services, 1996) at 513Google Scholar [hereinafter RCAP].

144. Ibid. at 521.

145. Ibid. The Commission cited three studies showing 70-80% completion rates at an undergraduate level, significantly higher than the rate in mainstream universities and colleges.

146. Examples ranged from fully-fledged colleges, like the Saskatchewan Federated Indian College with its own Bachelor Program and MBA offered by accreditation agreements with Saskatchewan universities, to smaller and more local institutions like Yellowhead Tribal Council which has been negotiating delivery of specific educational requirements with existing institutions; to community learning centres offering a mix of college-accredited and non-accredited programs, to non-profit institutes like the First Nations Justice Institute in British Columbia.

147. For a discussion of the American experience with Tribal Colleges, see Oppelt, N.T., The Tribally Controlled Indian College: The Beginnings of Self-Determination in American Indian Education (Tsaile, Arizona: Navajo Community College Press, 1990)Google Scholar which provides an excellent and detailed overview of the college system and individual institutions; and Hill, M. J., “Tribal Colleges: Their Role in U.S. Higher Education” in Killacky, J. & Valdez, J.R., eds., Portrait of the Rural Community College (Los Angeles: Jossey-Bass ERIC Clearinghouse for Community Colleges) at 31Google Scholar. For commentary on bureaucratic difficulties in maintaining the Tribal College system, see Olivas, M. A., “The Tribally Controlled Community College Assistance Act of 1978: The Failure of Federal Indian Higher Education Policy” (1981) 9 Am. Ind. L. Rev. 219–51CrossRefGoogle Scholar.

148. The latest proposal calls for both federal and territorial governments to fund the Akitsiraq Law School Society, which would in turn contract for “law school services” with an existing institution; the Society is intended to be locally dominated (Akitsiraq Law School Society, working paper summer 1999).

149. Siobhan Arnatsiaq-Murphy, email correspondence (25 June 1999).

150. For example, Dean Sandra Rogers of the University of Ottawa was cited saying that students were not academically ready for law school in Patterson's legal education proposal. Certainly, that appears to have been Patterson's own view.

151. Three Southern law professors, who spent the summer of 1997 in Iqaluit teaching the pre-law “Project Jump Start” program established by Arctic College as part of the Legal Studies Program observed that the students who were enrolled that summer “are extremely impressive in terms of their intellectual capacity, advocacy skills, enthusiasm and commitment. It is obvious to all the staff in the summer program that they would make highly competent, successful law students.” See Poitras et al., supra note 64.

152. Duncan Kennedy offers a pithy litany of potentially useful fruits of law school training. Though it is unlikely students see it in quite these terms, at least some students tend to have a sense that they will gain something useful—other than the qualifications—in learning to be a lawyer. “[T]hey learn skills, to do a list of simple but important things. They learn to retain large numbers of rules organized into categorical systems (requisites for a contract, rules about breach, etc.) They learn “issue spotting,” which means identifying the ways in which the rules are ambiguous, in conflict or have a gap when applied to particular fact situations. They learn elementary case analysis, meaning the art of generating broad holdings for cases, so they will apply beyond their intuitive scope, and narrow holdings for cases so they won't apply where it first appeared they would. And they learn a list of balanced, formulaic, pro/con policy arguments that lawyers use in arguing that a given rule should apply in a situation, in spite of a gap, conflict, or ambiguity, or that a given case should be extended or narrowed. These are arguments like ‘the need for certainty’, and ‘the need for flexibility’; ‘the need to promote competition,’ and the ‘need to encourage production by letting producers keep the rewards of their labor’.” Kennedy, note 99 above at 15.

153. See Rubin, E. L., “The Concept of Law and the New Public Law Scholarship” (1991) 89 Michigan Law Review 792, especially around p. 815CrossRefGoogle Scholar, where he discusses what he perceives to be necessary changes to the way that law is taught. He notes “legislators and administrators do not see law as an embodiment of general principle, but as an instrumentality for policy goals. The task of the New Public Law is to identify these instrumentalities, develop a theory for translating policy into law.” He suggests a new set of legal questions: which laws work best in general? Which work best for particular purposes?

154. There were two distinct rationales for the development of Black law schools in the United States: one was the reformist agenda of access to legal education and broader avenues of social change; the other, state-driven rationale, was the response to challenges compelling desegregation of historically white institutions if states were unable to provide educational opportunities within the state. This latter rationale accounts for the early development of several institutions, including Southern, Texas Southern, Lincoln University and North Carolina Central. However, as many as 25% of Black law graduates nationwide continue to attend those four institutions and Howard Law School, all historically black schools. The significance of these numbers is underlined when it is remembered that there are in excess of two hundred and fifty law schools in the United States. See Tollet, K.S., “Black Lawyers, their Education and the Black Community” (1972) 17 How. L. J. 326Google Scholar and Weeden, L. Darnell, “Black Law Schools and the Affirmative Action Rationale” (1987) 12 Thurgood Marshall L. Rev. 396Google Scholar.

155. Houston, C., “The Need for Negro Lawyers” (1935) 4 J. NegroGoogle Scholar ed. 49 cited in Ware, Leland, “A Difference in Emphasis: Charles Houston's Transformation of Legal Education” (1989) 32 How. L.J. 479Google Scholar; Smith, J. C. Jr, Emancipation: The Making of the Black Lawyer, 1844–1944 (Philadelphia: University of Pennsylvania Press, 1993)Google Scholar.

156. Interview with Paul Okalik, Premier of Nunavut (May 1999); Interview with Jack Anawak, Minister of Justice for Nunavut (October 1999); consultation with Nunavut lawyers (September 1999); Akitsiraq Law School: Draft Working Paper.