Supreme Court ruling shows need for more Indigenous Parliamentarians and judges, says lawyer

Following a Supreme Court ruling that there is no duty to consult Indigenous Peoples in drafting legislation, some officials say more Inuit, Métis and First Nations representation is needed on Parliament Hill. 

"Because there isn't the proper representation within the House of Commons and within the Senate, Indigenous people can point to a lack of consultation," said Métis lawyer and historian Bruce McIvor, of First Peoples Law Corporation. 

"Whether it's a legal obligation or not, it will simply lead to more challenges down the road. It's going to create bad laws that Indigenous people will have to challenge on a piecemeal basis and that's not good for anyone." 

McIvor said the appointment of three Indigenous senators this month is a positive step but more representation is needed.

"At the end of the day, they're a few voices calling out loud and strong surrounded by hundreds," he said.

"They're swimming against the tide because there are systems in place which do not recognise the reality of Indigenous rights."

To date, there have been 45 appointments to the Senate by the Trudeau government — eight of the appointees identify as Indigenous.

McIvor said he believes the ruling against the Mikisew Cree First Nation could lead to more Indigenous groups heading to court to challenge legislation, and so there should be also more Indigenous judges.

"What did the [Mikisew Cree] see when they were at the Supreme Court of Canada?" said McIvor.

"Nine non-Indigenous justices. It's all too common, and it's a systemic problem." 

Indigenous representatives on Parliament Hill

Canada publishes few statistics on judiciaries, but information from the Office of the Commissioner for Federal Judicial Affairs, which manages the appointments of judges to Canada's superior courts, said between October 2016 and October 2017, nearly 1,000 people applied to be judges and 36 of them identified as Indigenous. Of the 74 candidates that were appointed, three were Indigenous. 

Other data suggest that among Federal Court judges, 2.4 per cent of them identify as Indigenous, and there are no known Indigenous Supreme Court justices. 

According the Parliamentary Library, 10.5 per cent, or 11 of the 105 seats in the Senate, are held by Indigenous people. 

In the House of Commons, there are 11 Indigenous members of Parliament among 388 total seats, or 3.25 per cent.

The most recent census by Statistics Canada found that there were 1,673,785 First Nations, Inuit and Métis individuals in Canada in 2016 — just under five per cent of Canada's total population.

'More work to be done'

Recent Senate appointee Patti LaBoucane-Benson, who had been director of Research, Training, and Communication at Native Counselling Services of Alberta, began her senatorial duties Monday. She called the appointment a "tremendous honour."

"I think there's definitely more work to be done around Indigenous representation in the Government of Canada," she said.

"I think Indigenous Peoples need to be encouraged and supported to run as elected officials." 

LaBoucane-Benson said as well as bringing up Indigenous perspectives from within, she thinks more Indigenous voices in Parliament would improve nation-to-nation dealings with Indigenous leaders.

Mikisew ruling not a barrier, says Saganash

Romeo Saganash, NDP MP for Abitibi-Baie-James-Nunavik-Eeyou, said he'll be glad to hear more Indigenous voices in Parliament, even if they're "across the hall" in the Senate.  

Saganash made headlines for the language he used in criticizing the Liberal government's handling of Indigenous consultations related to the Trans Mountain pipeline expansion.

He said that, especially as part of the opposition, he sometimes feels isolated as an Indigenous MP. He said that makes it even more important for him to speak out. 

He added he's confident that the Mikisew ruling won't be a barrier for Indigenous Peoples. 

"Parliament is presumed to adopt legislation in keeping with its international obligations, and that certainly includes the United Nations Declaration on the Rights of Indigenous Peoples," he said. 

"All that remains intact, in my view." 

Saganash said indicators like the 2015 election, which saw a record number of Indigenous candidates, show that Indigenous Peoples are recognizing that they can effect change in Canadian policy. He said he thinks getting them into office is the next step.

'We are part of this system whether we like it or not'

Saskatchewan Senator Lillian Dyck, of Gordon First Nation, said she thinks the number of elected Indigenous officials in Canada is at least proportionate. Since Indigenous Peoples are a minority, she said, the base of Indigenous candidates and voters is smaller, she said. 

"I'm assuming [an] Indigenous candidate will focus on Indigenous issues," she said.

"In some areas of the country, maybe Indigenous issues aren't as important. The fact is there aren't that many Indigenous Peoples in Canada ... you don't have the numbers to get the number of elected positions." 

Dyck said while she believes the Senate and House of Commons to be sufficiently accessible for Indigenous Peoples, factors like the requirement for Supreme Court judges to be bilingual — speaking both English and French — are barriers.

"If you have a group that historically, is not going to be French-speaking, and you make that a requirement to be a Supreme Court judge, that's an example of systemic discrimination," she said. 

Dyck said the Supreme Court's ruling in the Mikisew case makes it clear to her that the more Indigenous voices in Ottawa, the better. 

"We are part of this system whether we like it or not," she said.

"The courts see Parliament as having supreme power.... Nothing's going to change unless you get in there and take some action."