IBA: Aboriginal Appointments to Appellate Courts

Recent Events

CBA Resolution – Background

There has been a lot of discussion and good work recently done on ensuring Aboriginal representation on the Supreme Court of Canada as well as on all appellate Courts throughout Canada . These developments, although initiated by the Indigenous Bar Association (IBA), have been accomplished by the coordinated efforts and commitment of many organizations, including the Canadian Bar Association (CBA), its National Aboriginal Law Section and its Standing Committee on Equity. A resolution in support of Aboriginal appointments to the judiciary is currently in progress and will be considered at the CBA’s Annual Meeting in Vancouver in August 2005. The IBA encourages all CBA members to educate themselves on these issues to allow for an informed debate at the CBA Annual Meeting on the resolution.

This issue is not new to the CBA. Indeed the CBA has been actively studying, recommending, reporting and passing resolutions on this very issue since the mid-1980’s, as Professor Peter Russell recently stated at a well attended joint CBA/IBA conference in Ottawa in March, 2005. Professor Russell noted that the CBA’s commitment to promoting the appointment of more Aboriginal judges to all levels of the Courts was first developed in a report he was commissioned to produce on a review of how the judiciary are appointed in Canada . The CBA echoed this commitment in its 1999 Report entitled Racial Equality in the Canadian Legal Profession , and again at its 2000 Mid-Winter Meetings where it adopted Resolution 00-01M which specifically called for a review of appointment criteria in support of Aboriginal appointments at appellate levels.

The commitment to Aboriginal judicial appointments is one that is clearly commonly shared between the CBA and the IBA, and this recent initiative to promote legal pluralism has promoted a growing partnership between these two national organizations.

It is the IBA’s view that no issue on any matter should proceed without meritorious debate. The issue of promoting more Aboriginal judges into the appellate Courts of Canada , including the Supreme Court of Canada, has certainly attracted its share of debate.

Some critics say that if Aboriginal Peoples are to be represented on the Courts in a more coordinated way then so too should all of the other groups comprising Canada’s multi-cultural mosaic. The IBA agrees that the composition of judges should be more reflective of Canada ‘s society. That being stated, there are significant differences between Aboriginal Peoples and all other ethno-racial groups comprising Canada that should ground this debate. First, Aboriginal Peoples are the only Peoples recognized in the Constitution Act, 1982 as distinct and whose rights are specifically protected. Second, Aboriginal Peoples founded Canada along with both the English and French – who are already represented by both custom and statute in the Supreme Court of Canada’s composition. Therefore, this current initiative for reform does not derogate from any other groups’ representation on the Bench but merely serves to uphold the Constitution of Canada and recognize Aboriginal Peoples’ role as a founding partner.

Indeed, Peter Hogg has also set out in his presentation to the CBA in March 2005 entitled “Recognition of Indigenous Laws/Reconnaissance du Droit Autochtone, The Constitutional Basis of Aboriginal Rights ” that not only is legal pluralism alive in Canada, but that through a series of Supreme Court decisions, including Sparrow , that Aboriginal rights and title have been constitutionally entrenched. Hogg suggests that, logically following such a conclusion, supporting an initiative to ensure Aboriginal representation on the Supreme Court and appellate Courts generally promotes a more fulsome legal analysis of the Aboriginal rights and title.

The National Secretariat on Hate and Racism in Canada is a unique organization in Canada that involves not only Aboriginal Peoples but also very diverse ethno-racial and faith-based communities who are committed to developing a national common effort between Aboriginal Peoples and non-Aboriginal groups in Canada to combat hate and racism. This diverse membership, including voices from the Asian, Black, Arabic and Jewish communities in Canada, have not only publicly promoted the appointment of Aboriginal Peoples to appellate benches but have also promoted the recognition of Aboriginal customary law alongside common and civil laws. Such legal pluralism is one of the cornerstones of Canada ‘s legal system, which is only served to be enriched by customary law.

Another significant element informing the discussion on this issue is the concept of merit. Leaving aside the fact that the notion of merit itself is subjective, yet typically cited as an objective standard, let’s address it. At a minimum, to qualify for the bench one must hold a law degree from a recognized law school and have been called to the Bar in one of Canada ‘s Provinces for at least ten years. Supreme Court judges may be selected from another bench or the profession directly. In addition to the minimum requirements, merit dictates that appellate judges – indeed all judges – are also of sound character and the brightest legal scholars or advocates. Subscribing to this principle of merit has promoted outstanding representatives to the Supreme Court. So why change it? The IBA is not promoting changing or diminishing merit.

In many ways, promoting the appointment of an Aboriginal member of the Bar to the Supreme Court only serves to expand merit insofar as balancing the scholarship among the Bench to include expertise in Aboriginal law. In the same manner that candidates are also selected for their expertise in a particular area, so too are they selected for their ability to determine all matters before the Court. An Aboriginal appointment does not dilute this notion. There are many Aboriginal candidates who are meritorious in every way and add a long overdue missing element of full representation of confederate partners. Simply put, an Aboriginal appointment does not equate with setting aside or diminishing principles of ‘merit’ but rather enhances it.

In light of the above, the IBA is confident that the CBA membership will ultimately seek to fully inform itself on this issue and that the CBA will continue along itslongstanding path of promoting Aboriginal Peoples to the Bench, as it has for the better part of the past two decades. The IBA encourages CBA members to review its position paper on this matter, which is available on the IBA website at: www.indigenousbar.ca and to contact the IBA to discuss this with you further. The IBA will continue to work with the various CBA committees and members on this matter and encourages you to contact them as well when seeking more information. Please contact the CBA National, provincial and territorial Aboriginal Law sections of the CBA. You may reach them by contacting Holly Doerkson of the CBA National Office or through the CBA Directory available on-line at: www.cba.org.

Update:

The CBA Council adopted a resolution on August 13, 2005 in support of the appointments of Indigenous jurists to all appellate level courts, including the Supreme Court of Canada.

Furthermore, CBA President, Brian Tabor, made submissions to the House of Commons Subcommittee on the Process for Appointment to the Federal Judiciary in November 2005, which specifically addresses the issue of appointment of Indigenous jurists.  For more information visit:
http://www.cba.org/CBA/News/2005_Releases/2005-10-31_judicial.aspx

The IBA is scheduled to make submissions House of Commons Subcommittee on the Process for Appointment to the Federal Judiciary on November 22, 2005.

Justice Harry S. LaForme of the Ontario Court of Appeal – the First Indigenous Judge Appointed to a Court of Appeal in a Commonwealth Country

 


IBA awards the 2005 Indigenous Peoples’ Counsel (I.P.C.) distinction to James (Sakej) Youngblood Henderson …read more