Reconciliation and Transformation in Practice: Aboriginal Judicial Appointments to the Supreme Court
Chartrand, Larry, Chartrand, Lisa, Feldthusen, Bruce, Han, Sarah, Canadian Public Administration
On 19 April 2004, Prime Minister Paul Martin signalled Canada's willingness to embark on a new collaborative relationship with Canada's aboriginal peoples. At the Canada-Aboriginal Peoples Roundtable, he stated, "We will ensure a full seat at the table as we have ensured today to aboriginal communities and leaders. No longer will we in Ottawa develop policies first and discuss them with you later. This principle of collaboration will be the cornerstone of our new partnership."
The former prime minister's statement has been interpreted as an opportunity to begin a process of reconciliation between aboriginal and nonaboriginal peoples. As aptly noted by Assembly of First Nations Grand Chief Phil Fontaine, all efforts at reconciliation will require transformative change, which in turn will entail a multifaceted approach to achieve both procedural and substantive reform. (1) This includes the manner in which Canada addresses the constitutional rights of aboriginal peoples, as well as the content of existing laws and policies. As the scope of aboriginal and treaty rights broadens and the depth of the judicially imposed consultation requirement becomes more apparent, we must begin to critically assess the impact such political and legal developments might have on the appointment process to the court of last resort. (2) Transformative change can and should entail accommodation of aboriginal legal traditions within Canada's pluralistic state. In this article, we will discuss how the appointment of aboriginal justices is one means by which indigenous legal traditions can be accommodated within Canada's juridical framework. This premise will be justified from both philosophical and legal bases.
The philosophical argument for recognizing indigenous legal traditions
Indigenous legal traditions and systems of law both pre-dated and post-dated the arrival of Europeans and imposition of the common law and civil law systems of justice. More importantly, these legal traditions demonstrate the crucial role that indigenous legal traditions played in the historic harmonization of relations between aboriginal nations, as well as between aboriginal nations and the European newcomers. Indigenous legal traditions historically had a legitimate and valid role in the evolution of the Canadian state. In consideration of this history, we submit that indigenous legal traditions should be embraced as an integral aspect of the country's juridical foundation.
Accommodation of indigenous legal traditions within Canada's legal framework is a timely issue in terms of situating the proper place of aboriginal peoples and their legal traditions within Canada's pluralistic state. In various regions of the country, citizens live according to the laws of both the common law and civil law systems. Many citizens also live according to the indigenous legal traditions of the societies to which they belong. Given this reality, it is inaccurate to characterize Canada as bi-juridical. Rather, this country is a multijuridical state, where the distinct laws and rules of three systems come together within the geographic boundaries of one political territory.
Often, the belief systems of aboriginal and non-aboriginal peoples are complementary to one another; in certain circumstances, they are incompatible. (3) Notwithstanding this diversity, it is important to acknowledge that none of these systems is superior to the others. In each case, the legal traditions are unique and integral to the society in question and are based on fundamental beliefs and values of the society.
The proper place of aboriginal peoples is not merely as subjects of either the common law or civil law legal system, with their indigenous legal traditions treated as insignificant, irrelevant and unenforceable. True justice demands that Canada's juridical state make room for indigenous legal traditions and that these traditions be acknowledged along with the common law and civil law systems. …