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


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 people. 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. I remember the first time I took a survivor through an examination for discovery. I'd taken other victims of child sexual abuse through discoveries before, but I knew this was going to be different. I picked someone I thought had a very strong case, was very bright, and would best be able to handle the rigours of the process. Despite the best intentions of the Department of Justice, and the lawyer asking the questions, my client was absolutely shredded by the experience. And that was a terrible thing; she'd already been devastated by the experience of attending residential school, and then in our adversarial justice system she felt as though the government of Canada was trying to blame all of the troubles in her life on her family, her community, and all the terrible things that happened to her as an Indigenous woman in Canada. The message she got was: “never mind about residential school, you have all these problems for all these other reasons.” When I left that examination for discovery, I thought “this is not good, the adversarial process is not appropriate for these types of claims.”

Canada took a very positive step when it introduced the alternative dispute resolution process (“ADR”) for resolving residential school abuse claims. The process was inquisitorial and well-suited for certain kinds of cases. With input from multiple stakeholders, we built on the ADR process in the Indian Residential School Settlement Agreement. We created a process, the Independent Assessment Process (“IAP”), that maintained the best parts of the ADR process, and enhanced it. 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 the previous processes. It was faster, less adversarial, more comprehensive, and more supportive. The validation and apologies that claimants received at the conclusion of a 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.

Let me give you a few examples. I acted for a woman from a small community in the Yukon. After suffering sexual abuse at a residential school, she was so disturbed by her memories that she had never slept through the night. She phoned me after her hearing, and said “I feel like I'm free. I actually slept through the night for the first time in seventy years.” Thinking about her literally still gives me goosebumps.

I had another client in Yellowknife who had been sexually abused by a priest, which he considered to be very shameful. He was struggling with substance use disorder, disheveled and on the verge of homelessness. He was sure he wouldn't be believed but, when he was, it changed his life. I saw him later in Yellowknife from a distance. He was wearing a new leather jacket, his face was full, and he was walking with purpose. He looked very well and I knew he was getting back to being the person he was meant to be.

As a final example, I acted for a survivor from Inuvik who had a very modest claim and received a very modest award. I met up with him after he received his award, and he told me he had bought a new bed and a TV. He said he'd never slept in a comfortable bed or had a TV before. These modest purchases brought a lot of joy to him and his wife.

These are all examples that demonstrate how people are treated in the legal process can make a real human difference. As a judge, I've had the opportunity to interact with lots of Indigenous people, 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 not-too-distant past. 

There are many success stories. We need to build on these successes by being open to changing processes for Indigenous people and other litigants. Restorative justice principles are consistent with the values of Indigenous communities, and there are all kinds of disputes, particularly certain types of criminal and family 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.