How Has the Law Contributed to Making the Lives of Indigenous Peoples Better

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THE HONOURABLE JUSTICE LEONARD MARCHAND

How Has the Law Contributed to Making the Lives of Indigenous Peoples Better Since Delgamuukw?

My friend, law school classmate, and Supreme Court Justice Russ Brown said to me not too long ago that “there’s so much to do, because there’s so much to undo.” I know there’s a level of impatience, and that there’s a need for sweeping changes. But the reality seems to be that the process of making a difference is going to be brick by brick, step by step, person by person, family by family, community by community.

Looking back over the last 25 years, I would say that Delgamuukw made a difference. Without Delgamuukw, there would have been no declaration of Aboriginal title for the Tsilhqot’in peoples. Delgamuukw was a necessary step to get to the place where the court has actually now found Aboriginal title. Although in a different context, in my view, other ground-breaking cases like Yahey v. British Columbia (which for the first time found a treaty infringement based on the cumulative effects of development) also owe a debt of gratitude to Delgamuukw.

Over the last 25 years, there have been other big advances, like the introduction of Indigenous sentencing courts in BC. BC’s first Indigenous female judge, Marion Buller, was the driving force behind the initiative that led to the establishment of eight such courts. I had the privilege of sitting in the one in Kamloops. Every day that I sat in that court, I could see how the integration of Indigenous values and traditions made a difference in the lives of offenders, their families, and their communities. Two other important developments are the formal adoption of UNDRIP by Canada and BC, and the passage of Bill C-92 recognizing the inherent right of Indigenous communities to ensure the welfare of their children.

I also think about the work that I and many others did together, on residential school cases in the 1990s and 2000s. We moved from our adversarial process that often shredded survivors and was not appropriate for the nature of the claims to the Independent Assessment Process (“IAP”). The IAP wasn’t perfect, and not everyone was ready for the process but, for the vast majority of people that I worked with, it was a big improvement over litigation. It was faster, less adversarial, more comprehensive, and more supportive. The validation and apologies that claimants received at the conclusion of an IAP hearing were just as important as the compensation that they received. Hearing an adjudicator and a Government of Canada representative say, “I believe you. That was not your fault. That should never have happened,” was very meaningful to survivors.

As a judge, I’ve had the opportunity to interact with lots of Indigenous people, particularly in family, child protection, and criminal matters. I think it matters that I speak to them in a meaningful way, empathize with the things they’ve been through, understand the traumas that have affected their lives, and reflect their experiences in the judgments I’ve had a chance to write. I’ve heard from some of these people about how my words have made a difference to them and I know it’s the same for my judicial colleagues who take such care in their interactions with everyone who appears before them. That’s a big change compared to the way many Indigenous litigants were treated in the nottoo-distant past.

There are many success stories. Looking forward, we need to build on these successes by being open to changing processes for Indigenous peoples and other litigants. Restorative justice principles are consistent with the values of Indigenous communities, and there are all kinds of disputes that could benefit from a less adversarial, more restorative approach. We have a fantastic justice system. Part of what makes our justice system great is that it is continually improving and evolving. Lots of problems remain but the last 25 years demonstrate that we can and should try to make a difference.

The Honourable Justice Leonard Marchand was interviewed by Isabel Jackson and Brandon Hastings for the purpose of this article. This excerpt has been edited for length and style. An extended version of this excerpt is available online at cbabc.org/BarTalk.