In the Spotlight—Stephen Mussell

This month’s spotlight shines on Stephen Mussell of Mandell Pinder LLP.

Who are you and how did you first get involved with CLEBC?

I am a Michif (Métis) dad, partner, son, and grandson. I am a citizen of the Manitoba Métis Federation and an Indigenous rights lawyer with Mandell Pinder LLP. I’ve been involved with CLEBC for some time now and have attended and presented at various CLEBC events in the past.

What are you currently working on (or have most recently worked on) with CLEBC?

I am co-chairing CLEBC’s Aboriginal Law Conference with my colleague Rosanne Kyle, KC, which is set to take place on November 24, 2023.

Who is your inspiration/role model?

Being a new dad, right now I’m most inspired by my son Emile. Seeing him grow and play and learn is the joy of my life. In all the work I do his future and his interests are always front of mind and I hope that one day he will be able to look back on what I’ve done with pride knowing that I approached my work in that way. In a similar vein, right now my role model is my partner, Audie. She maintains an incredible and demanding art practice and bears the brunt of parenting duties during the week — I wouldn’t be able to manage without her. Ultimately everything I do and all the love and effort I put in is for them.

Do you practice Aboriginal law or Indigenous law?

This is something I push back on a lot. The first line from Chapter 2 of Volume 6 of the Final Report of the Truth and Reconciliation Commission of Canada states: “[a]ll Canadians need to understand the difference between Indigenous law and Aboriginal law.”

Despite this, I’ve observed that many law firms and lawyers don’t appreciate the distinction and, whether well-meaning or not, have incorrectly re-named their practice groups “Indigenous law” or erroneously proclaim that they practice Indigenous law. I see this as being akin to a lay person watching an episode of “Suits” and proclaiming that they’re now a lawyer.

At the risk of over-simplifying, Indigenous law is a way to collectively refer to the diverse and varied laws, legal orders, and legal systems that Indigenous people have governed ourselves by since time out of mind. Aboriginal law is the area of law that has developed within the Canadian common law to deal with the fact that Indigenous peoples were here when non-Indigenous people showed up.

Using myself as an example, I have studied my Indigenous law (Michif law) for many years, but I would not say that I’m an expert in Indigenous law or that I practice Indigenous law. That’s a level of expertise that can only come from years of training, learning, and experience that must often occur within a specific cultural context. As a lawyer, I practice Aboriginal law.

I don’t believe lawyers practice Indigenous law as lawyers. There may be a small number of Indigenous lawyers who “practice” Indigenous law as members of their communities, Nations, etc., but as lawyers working within the colonial common law, we practice Aboriginal law.

In my opinion, the most we can say is that we translate, apply, and attempt to implement Indigenous law in a colonial legal context – but this is all within the realm of the practice of Aboriginal law. To those law firms who have re-named their practice groups to “Indigenous law,” and to those lawyers who assert they practice Indigenous law, know that your decision isn’t without consequence.

It cheapens Indigenous law and causes confusion. When we start folding Indigenous law into Aboriginal law, we treat it as something less. Indigenous laws have inherent power and legitimacy and must be differentiated and allowed to stand on their own. It’s my hope that we’ll get to the point where this is known and appreciated, and where law firms and lawyers who claim to be experts in this area stop making such a fundamental and frustrating mistake.

What trends do you currently see in your practice of Aboriginal law?

Increasingly, the colonial law’s myopia and past and ongoing failure to substantively deal with the complexities of Indigenous law, and how the rights and interests of Indigenous peoples presently and historically interacted and co-existed, presents a problem. For example, take the Supreme Court of Canada’s decision in R v Powley which laid down the test for Métis peoples (within the meaning of s. 35 of the Constitution Act, 1982), to establish an “aboriginal” right.

Métis history within the Métis Homelands is one of alliances, trade arrangements, treaties, and intermarriage with (primarily), our First Nations relatives. Over hundreds of years and through these various legal, political, and social avenues our Métis ancestors legitimized and solidified our rights and our presence on the prairies and within our Homelands.

The Powley test doesn’t take any of this into account. Rather, it enables a Métis right to be established absent any consideration of the legal, political, and social context which always informed the existence (or non-existence), of the right in question. The implications of this glaring oversight can be plainly seen today in the conflict currently playing out in Ontario and BC between the Métis Nation of Ontario and the Métis Nation British Columbia and First Nations in those provinces.

Among other things, Powley has created the possibility for Métis rights to be established where none may have previously existed. It has also enabled the establishment of a Métis right absent consideration of any pre-existing legal, political, and social context that may inform, delineate, or limit the valid exercise of that right.

In this way, and in my opinion, the Powley decision is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples as it has caused Indigenous law and jurisdiction being wholly ignored and undermined. What’s resulted is that the Métis Nation has been deeply and negatively impacted both internally and externally. Expect to see this emerging issue take center stage in the coming years.

Tell us about the best part of your work.

The best part of my work is the people. I’m honoured to get to collaborate with some of the leading legal thinkers in the area, and to work with and alongside our amazing and inspiring clients.

If you could change one thing in the legal community/profession, what would it be, and why?

The assumption of Crown sovereignty and the Crown’s acquisition of radical or underlying title upon assertion, for reasons I hope are obvious.

Other than law, what are you passionate about?

I’m passionate about being a good father and partner, I’m passionate about decolonization and the betterment of the Métis Nation, and I’m passionate about personal growth. I’m also a big Edmonton Oilers fan and enjoy squeezing a round of golf in when parenting allows for it.