Kent McNeil is professor emeritus at Osgoode Hall Law School. Brooks Arcand-Paul is vice-president of the Indigenous Bar Association.
“Not broken, but simply unfinished.” As reflected in this line from Amanda Gorman’s poem at U.S. President Joe Biden’s inauguration, there is still work to be done to achieve our justice system’s highest ideals.
As a country, Canada is beginning to acknowledge and understand the contributions that Indigenous peoples make towards Canadian democratic institutions and legal systems. However, an Indigenous jurist has never been appointed to the Supreme Court of Canada (SCC).
This is problematic, especially given the fact that the SCC continues to render decisions that dramatically affect Indigenous people’s lives and shape the scope and extent to which their laws, lands and ways of life are protected by the 1982 Constitution Act. These decisions frequently speak to the need for reconciliation between Canadian society and Indigenous peoples, and for courts and other decision-makers to consider the unique perspectives and circumstances of Indigenous peoples today. But a gap undoubtedly exists as long as Indigenous voices are not represented at the highest judicial level. If Canada truly wishes to reconcile with our past and chart a strong course for our future, an Indigenous judge must be appointed to the SCC.
The Canadian legal system already recognizes the importance of diversity on its highest court. We see this recognition reflected in the SCC’s conventions regarding regional representation, and in the unique statutory requirement that at least three of nine Supreme Court judges be appointed from the province of Quebec. This requirement signals to Canadians that Canada wishes for its highest court to reflect, to the extent possible, the diverse tapestry of which Canada is comprised.
Canada is multi-juridical. Our legal tapestry includes English common law, French civil law and Indigenous law. While the first two are represented on the SCC – and have been recognized as foundational to supporting the notion of legal pluralism in Canada – only Indigenous legal orders are unrepresented. Why?
Indigenous laws are foundational to the past, present and future of Canada. These Indigenous laws have persisted, despite more than a century of attempts to decimate them through genocide, residential schools and other colonial actions. Although the SCC has recognized that Indigenous peoples have possessed – and continue to possess – legal traditions, the implications of this recognition have been largely ignored. As John Borrows, the Canada Research Chair in Indigenous Law, has described, Indigenous peoples’ laws hold relevance not just for themselves, but for all Canadians.
Since 1867, Canadian courts have recognized Indigenous laws (to at least some degree) in the areas of family law, adoption and marriage. Today, Federal Court judges are increasingly drawing upon Indigenous laws and legal orders in their decisions. They are doing so guided by Indigenous lawyers, and with the benefit of Indigenous elders’ testimony, community protocols and support (the majority of which are unavailable to appeal courts, such as the SCC).
The lack of Indigenous judges on the SCC is not a matter of a lack of qualified candidates. There are many Indigenous lawyers, judges (at lower court levels), and academics who have made substantial contributions to Canada’s legal landscape and unquestionably meet the qualifications set out in the Supreme Court Act. Instead, this lack is a matter of political will. Is Canada prepared to adopt an approach that confirms that Indigenous people have the right to be involved in decisions that impact them? Or will Canada continue to endorse the colonial status quo of systemic racism, artificial barriers and endemic disregard for Indigenous peoples’ laws, thereby ignoring an increasingly disappearing faith in the justice system?
Continuance of the status quo cannot be the message Canada sends in an era of reconciliation, on the eve of adopting the United Nations Declaration on the Rights of Indigenous Peoples, and with a Prime Minister who has repeatedly said that no relationship is more important to the country than that with Indigenous peoples.
As Mr. Borrows has written, Canada’s legal system is unfinished. Appointing an Indigenous person to the SCC is the next logical step in the ongoing journey towards recognition and reconciliation. It would signal to all Canadians, and to the world, that the time has come to finally recognize our multi-juridical roots and to plan with foresight for our future. While we undoubtedly have a long way to go, this would be a powerful step in the right direction and place our country, and our highest court, on firmer footing.
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