Minister ponders appointment to Supreme Court

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Should there be a permanent Aboriginal presence on the highest court in the land? It's a debate that is just beginning in Ottawa.

Two spots will open up on the Supreme Court of Canada in June because justices Louise Arbour and Frank Iacobucci have resigned from the court. Iacobucci will retire. Arbour will leave to head up the United Nations Human Rights Commission.

With the announcement of those departures, lobby efforts directed at Justice Minister Irwin Cotler are heating up. Earlier this year, he floated the idea of a hard-wired spot for an Aboriginal justice on the Supreme Court. Though he has made no public statement on the issue since, Cotler's idea was seized upon quickly. Ottawa lawyer Dave Nahwegahbo wrote an opinion piece for the Ottawa Citizen in favor of the move. Grand Chief Chris McCormick of the Association of Iroquois and Allied Indians (AIAI) is actively lobbying for the appointment of a citizen from one of his organization's communities. Aboriginal Senator Charlie Watt wrote in a letter to Cotler that appointing an Aboriginal person to the Supreme Court of Canada is "long overdue."

"The Supreme Court is one of our great symbols of justice and equality in this country and it would be a tremendous step forward for the cause of justice to have an Aboriginal justice appointed to the Supreme Court of Canada. You will be criticized for this initiative, but I know you will not be daunted because you have dedicated your life to justice and applied yourself to very difficult human rights cases."

There are about 17 Aboriginal judges in Canada, said lawyer Dianne Corbiere, the president of the Indigenous Bar Association (IBA). The IBA believes any one of those judges would be able to make a solid contribution to the Supreme Court.

In Aboriginal Judicial Appointments to the Supreme Court of Canada, an IBA-commissioned paper prepared by lawyers Albert Peeling and James Hopkins, it states that reserving a seat for an Aboriginal justice would not be unprecedented. The Supreme Court already reserves three spots for Quebec, three for Ontario, two for the West and one for Atlantic Canada.

They write that the appointment of an Aboriginal justice would be a move that is consistent with Canadian "legal pluralism," a term used to describe a situation where several legal traditions are combined in one legal system. Legal pluralism already exists in Canada, they argue, because Quebec does not rely on British common law, as do all other Canadian provinces, but on civil law that evolved in France. If two approaches can be accommodated in one system, they ask, then why not three or more?

"Aboriginal rights under S. 35 of the Constitution Act, 1982 -rights based in part upon the laws and customs of the Aboriginal people-constitutionally recognizes those laws and customs in the same way that the Quebec civil law is recognized. That recognition carries with it a need to change the judicial institutions in this country to ensure they are, in form and substance, capable of administering those laws," the lawyers wrote. "Just as the recognition of the civil law of Quebec makes it necessary that there be representation of Quebec judges specifically on the Supreme Court, so too does the recognition of Aboriginal laws and customs as living law in Canada make Aboriginal representation necessary if the legitimate claim of the Supreme Court to be the final arbiter in cases concerning Aboriginal peoples is to be maintained."

Hopkins and Peeling argue that mainstream Canadians don't appreciate the role played historically by the many varied Indigenous peoples who greeted the European newcomers as they fanned out across the land now known as Canada. They say Canadians need to come to terms with the real history of this country, as opposed to the biased and revisionist version of what has come to be generally accepted in the mainstream as the true facts about the colonial period.

"Despite the fact that Aboriinal peoples are the bedrock of present-day Canada, despite the fact that Aboriginal peoples were historically military and political partners in the Seven Years War, the American Revolution and the War of 1812, and despite the fact that there have been repeated constitutional recognitions and affirmations of that fact, there has been only recently and incompletely the dim recognition of Aboriginal peoples as partners in Confederation," they wrote.

They say Aboriginal people are unlike any other minority in Canada; that three distinct people came together to form modern Canada. "These founding nations are the Aboriginal peoples of Canada, the French and the British respectively, and their relationship constituted Canada."

Paul Chartrand is a Metis man and law professor at the University of Saskatchewan. He said that an Aboriginal perspective should be represented in the Supreme Court, but disagreed with the approach taken by Peeling and Hopkins.

"Their main argument was that Canada is constitutionally based on the participation of Aboriginal people and I believe that's not the best approach," he said. "Aboriginal people were never involved in the actual creation of the institutions, and it's important to note that Aboriginal people have not participated. So in order to effect Aboriginal participation, Aboriginal people must be included in institutions that matter, where decisions are made. I think that's a better approach because there's no risk of being accused of historical revisionism."

Conservative Party of Canada Justice critic Vic Toews, in a published report, rejected the idea of an Aboriginal justice on the Supreme Court, saying it would require that other appointments would need to be made from other ethnic groups.

"I am sure there are many competent Aboriginals, but I think race is one of the last things we should look at," Toews told the Ottawa Citizen. "Where do you stop? We have very competent Chinese people, very competent Mennonites, andwe don't see any Mennonites on the Supreme Court. I just think it's a terrible precedent to start judging people on the basis of their race." Chartrand said Toews' views represent a widely held but deeply flawed understanding of Canadian history.

"The concept of race has no biological or scientific basis. The consensus amongst all social scientists, all scientists actually, is there's no such thing as race. So we can put that aside. Race is an idea. It's a word that is commonly used to refer to people that have been singled out for political purposes," he said. "It's an empty label used to denote people for political purposes."

Aboriginal peoples have indeed been singled out for political reasons and were treated differently from Europeans who moved onto their land, he said, and the distinction is one that was first made by the Europeans. And it is for precisely that reason that Aboriginal peoples need representation in Canadian institutions.

"We're not talking about the personal antecedents of individuals. We're not talking about their ancestry. We're talking about historic nations who are political and social in their nature. The nations are made up of communities of people who live together who have special rights protected in the Constitution," he said. "That's what Aboriginal peoples are. It's what distinguishes Aboriginal peoples. So the basis for understanding Aboriginal rights are in history and there are different ways of explaining it, but the Supreme Court has said it's because Aboriginal people were here. You can't just come over and take over people's land. That's done through either warfare or theft. Take your pick. And because you just can't take over people's property, the people's rights are based on the fact that this is their land. That's all it is. The land was not empty; there were people here. So that's the reason. These are historical nations."

And it's not based on race at all, he insisted.

"We're fighting a rear-guard action gainst the unthinking, the people who have not really thought through these things," he said. "Some people have pointed out that this kind of thinking still works a bit in Canada because of the immigrant population who have no sense of Canadian history. They come here from somewhere else and they want to be treated equally and they don't understand that there's a history of pre-agreements here."

Treaties are "compacts of Confederation" and part of the most fundamental fabric of this country, but that's a concept that is not easy to grasp for non-Aboriginal people or those who do not study such complex matters in detail, Chartrand added.

"Groups agreed to join Canada. That's a fundamental constitutional agreement to join the country. You can't just say, 'Well, forget those constitutional, historic promises that constituted the country.' You can't do that," he said. "The sources of these special constitutional rights are in history, and without an appreciation of history one cannot understand them."

The prime minister has the final word on who gets appointed to the Supreme Court. But the standing committee on justice, human rights, public safety and emergency preparedness, chaired by Liberal MP Derek Lee, is examining alternative ways to appoint judges as part of the prime minister's plan to give more power back to MPs.