Reconciliation and transformation in practice: Aboriginal judicial appointments to the Supreme Court

Abstract

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. 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. 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.