Grad student collaborating with First Nation on governance project

Elysa Darling, JD’16, has always centred her academic career and volunteer activities on the rights of marginalized groups, including Indigenous populations and women. Darling spent some time working in a law firm after graduation, and her work in First Nations corporate commercial law sparked her interest in specializing in a related area.

That’s why Darling jumped at the chance to pursue her LLM (Master of Laws) when she learned that Professor Jennifer Koshan had received a SSHRC grant for a project that focuses on the access to justice crisis in domestic violence cases in Canada.

“My professional experiences have given me unique insight into how the legal system fails women and Indigenous people,” says Darling. “Understanding how the legal system could work for Indigenous women instead of against them is exactly the kind of work I became a lawyer to do.”

Collaboration with Ermineskin Cree Nation

Darling’s thesis research is a collaboration with the Ermineskin Cree Nation in Maskwacis, Alta., where she works with the Nation to review and enhance an existing matrimonial real property law that will reflect the teachings and traditional ways of the Nation. She is consulting with citizens and employees of the Nation to learn how the family unit within the culture works, and how those family units deal with violence. Once the consultations are complete, Darling will work with the Nation’s External Affairs Department and outside counsel to re-draft the law.

“Elysa’s research is important because we are essentially turning around the way we look at law in the Canadian legal context,” says Danika Lightning, external affairs director of the Ermineskin Cree Nation. “We are starting from a point of figuring out who we are, what is it that shapes us, and the way we view governance from a Neyaskweyawinowahk perspective (Ermineskin Cree Nation person). Elysa’s research is in line with this approach that our department is taking.”

Unique challenges a result of colonialism

According to Darling, domestic violence and matrimonial property cases on reserve present unique access-to-justice challenges due to systemic dynamics of power and inequality perpetuated by colonialism. Additionally, those involved must often contend with multiple, intersecting legal systems to resolve all the issues flowing from intimate partner violence.

Darling’s research approach, and future recommendations, takes into account the traditions, customs, history and language of the Ermineskin Cree Nation.

“We are taking the time to go back to the stories and oral teachings, and using those to guide and provide a foundation for any written law we wish to draft that deals with Canadian legal concepts, such as matrimonial property and social issues like domestic violence,” says Lightning. “We are trying to turn around the way we make laws from a top-down approach to an approach that involves Nation citizens and Elders, and is influenced by our traditional values and unwritten laws.” 

Research leads to scholarship

For her work, Darling recently received the Persons Case scholarship from the Government of Alberta, which honours the efforts of Alberta’s Famous Five — Emily Murphy, Louise McKinney, Nellie McClung, Irene Parlby and Henrietta Muir Edwards — who fought and won the right of some women in Canada to be considered ‘Persons’.

“As a woman in Alberta, I feel a deep connection to the Persons Case and its legacy,” says Darling. “I feel that the woman question — whether the word ‘persons’ in Section 24 of the British North America Act, 1867 includes female persons — resonates with the jurisdictional issues Indigenous women face in domestic violence. I hope my research can contribute, albeit in a small way, to the legacy left by the Persons Case in protecting Indigenous women from violence.”

Darling is expected to defend her LLM thesis in summer 2019.