Trust. Integrity. Reputation.
July - 2007
Connecting the dots
Windspeaker Editorial
The long-awaited report from the chief commissioner of the Ipperwash Inquiry, Justice Sidney Linden, was released to great - and well-deserved - fanfare and accolades.
And in British Columbia, a less experienced jurist struck down Section 6 of the Indian Act as unconstitutional. If the federal government can't convince an appellate court to overturn Madame Justice Carol Ross' trial level decision, it will obliterate the federal government's precariously jury-rigged system for dealing with the question of who gets Indian status and who doesn't.
In both cases, the decisions took a lot longer than usual to emerge.
Veteran Aboriginal legal observers noted that in both cases, powerful people were watching very closely.
We suspect the delays were an indication that the jurists were aware of that scrutiny. Lawyers often joke nervously about career-limiting moves by judges and other public officials; moves that offend the sensitivities of the protectors of the status quo. So to see both jurists agonize over their important tasks and then do the right thing is encouraging, even inspiring.
There's no way to know for sure if the two members of the judiciary really were feeling the heat, because it is not considered seemly in Canadian society to question judges. They are above the fray, immune from the kind of public accountability to which other public servants are subjected.
But it seems that whenever a judge is asked to hear a case that will deal with the challenges that Indigenous peoples in Canada pose to the Canadian establishment, the tension goes up. The two judges in question chose integrity and courage over going along and getting along, and that is expected from people who've risen to such high stations in their lives and careers. But it's not something that you'll see everywhere you look as you survey the daily actions of public servants in this country.
During final arguments last summer, lawyers representing former Ontario premier Mike Harris told Justice Linden that he did not have to deal with the question of whether the former premier uttered a racial slur and then repeatedly lied when he denied it. He was told he didn't have to go there; that it wasn't part of his mandate.
Lawyers representing the Ontario Provincial Police told him that he didn't have to deal with questions of racist words and acts by the police. They gave him plenty of suggestions on how to avoid the issue.
He had an out. But he chose not to take it.
Madame Justice Ross was urged by federal lawyers to turn away Sharon McIvor's application to strike down Section 6 of the Indian Act. The Crown argued that McIvor suffered no injury when she was prevented from passing on Native status to her son. The Crown argued there is no right to transmit status. It's only a matter of statute and therefore no rights have been denied. The Crown raised a number of ingenious, if self-serving, arguments. The judge could have allowed herself to be persuaded and taken the safe way out.
But she did not.
And Prime Minister Stephen Harper says he has a solution for ending the Crown's conflict of interest in deciding specific claims against itself. In this plan a so-called "independent tribunal" is to be made up of "federally-appointed" retired or sitting judges.
Despite the admirable actions of the two judges mentioned above, "federally appointed" is, by definition, not independent.
Politicians appoint judges and those judges are part of the Canadian establishment against which land claims are filed. We've seen too much evidence of what is wrong with that approach over the decades with too many court decisions that dismiss the Indigenous perspective out of hand. That's one of the reasons why the actions of Justices Linden and Ross are so noteworthy. They went beyond that. The very fact that the specific claims process is so dysfunctional is proof that government wants to maintain ultimate control.
If the government is solely responsible for appointing members of an "independent" tribunal, then there is no acceptable check or balance to ensure that judges who ignore the pressure to go along and get along won't get skipped over when appointment time comes.
Only a truly independent tribunal with equal influence from both First Nations and the government of Canada will get the job done.
Everything else is a charade, something the national chief, the minister and prime minister know full well.
We say go back to the drawing board gentlemen.