by Jeffrey F Harris

The Aboriginal Law Section submitted a resolution for the August 2004 CBA annual meeting in Winnipeg calling upon the federal government to recognize legal pluralism by appointing indigenous judges to the Supreme Court of Canada. The resolution was tabled with a view to consulting with Branches and other groups to address questions and receive feedback from CBA constituents.

The Section’s Executive Committee considered comments and questions from Branch Council members, the CBA Standing Committee on Equity, and the indigenous Bar Association. The revised resolution calls upon federal and provincial governments to better reflect the recognition of Indigenous legal systems in judicial appointments, and to give particular focus to the appointment of aboriginal judges to all appellate courts, including the Supreme Court of Canada. This revised resolution reflects a version that we hope is most likely to be supported when considered by CBA Council in Vancouver in August 2005.

We consider this to be an important step in fulfilling the goal of reconciliation, which, according to the Supreme Court of Canada, is called for by section 35(1) of the Constitution Act, 1982. At the Section’s annual CLE, held in conjunction with the Indigenous Bar Association in Ottawa March 4-5, 2005, we were reminded that Indigenous legal systems are part of the legal landscape in Canada, their “legitimacy” having been affirmed by section 35(1). In the Van der Peet decision, the Supreme Court of Canada noted that section 35(1) “provide[s] the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.”

This resolution is intended to support that reconciliation. The Section believes that reconciliation requires that all our founding legal systems – British common law, French civil law, and indigenous law be reflected in the judiciary of the country.

Currently, there are fewer than two dozen indigenous judges in Canada, and of that, only four are members of the superior courts, with only one on an appellate court. We are not looking for quotas, nor are we suggesting that there be any change to other criteria to appointments. But we do think that it is time for the provincial and federal governments to take this issue seriously.

Jeffrey F Harris, Chair, National Aboriginal Law Section

This article was published in the August 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.