A senior judge of the Federal Court of Canada has strongly objected to showing respect for Indigenous people by acknowledging their unceded traditional lands in courtroom proceedings, a common practice at the Supreme Court of Canada as well as government and corporate events.
Justice Richard Bell was also critical of the Mi’kmaq concept known as “two-eyed seeing,” which encourages courts and other Canadian institutions to examine environmental and social issues from both Indigenous and Western perspectives.
Justice Bell made the remarks while hearing a judicial review case in Halifax in late May, challenging the federal government for failing to properly assess the risks of exploratory drilling for oil and gas off the coast of Newfoundland and Labrador. Sierra Club Canada, World Wildlife Fund and Ecology Action Centre were urging the court to quash a ruling by Ottawa to exempt the drilling from an environmental assessment.
“Aren’t we being a bit stereotypical toward the European version of the world in this two-eyed vision?” Justice Bell asked when the concept was raised in court. “Well, I don’t think my forebearers were very short-sighted about anything ... I don’t buy into any of that.”
As the case got underway on May 25, Justice Bell addressed lawyer James Gunvaldsen-Klaassen, who represents the three environmental groups, after he said: “I want to gratefully acknowledge that I live and work on the unceded territory of the Mi’kmaq, also known as Halifax, Nova Scotia.”
Justice Bell stopped Mr. Gunvaldsen-Klaassen and criticized him for making such an acknowledgement.
“This regard to the territory creates a problem for the court – any court – because we are called upon to decide territorial issues on a daily basis. So, what is the court supposed to respond when you do that?” Justice Bell said. “Do you understand the dilemma that puts judges in when they are faced with such an acknowledgement and we are supposed to sit there and say ‘yes,’ ‘no,’ [or] nothing. What do judges do, sir?”
It is standard practice before the Supreme Court of Canada and other courts to acknowledge unceded traditional Native lands in opening sessions or when governments or public institutions make announcements.
Mr. Gunvaldsen-Klaassen responded that he was expressing his “own personal conscience” and wasn’t seeking a finding from the court.
However, Justice Bell told Mr. Gunvaldsen-Klaassen that if he felt strongly about acknowledging traditional Indigenous territory, he should seek permission from First Nations leaders that he is coming on to their lands.
“Write the chiefs of the appropriate First Nations and get their permission, and then if you get their permission, then the Court will hear you,” he said. “In the future, you ask the permission of the First Nations you are concerned about.”
Canada’s first Indigenous justice minister, Jody Wilson-Raybould, would not comment directly on the case, but said recognizing First Nations territory at the outset of proceedings “in some ways complements the symbolism of the court and the evolution of our legal orders in Canada.”
The following day, Justice Bell took issue when Crown counsel lawyers Sarah Drodge and Melissa Grant raised the concept of “two-eyed seeing,” an idea first advocated by Mi’kmaq Elder Albert Marshal. He argued that “beneficial outcomes are much more likely in any given situation when we are willing to bring two or more perspectives into play.”
The two federal justice lawyers argued that consideration of Indigenous and Eurocentric views were a “great development,” adding that the two-eyed principle is being increasingly incorporated into government policy-making.
Justice Bell, who is also Chief Justice of the Court Martial Appeal Court of Canada, said he interpreted two-eyed seeing as giving the impression that “those of us of European descent are short-sighted and basically visionless.
“If my interpretation is correct and European peoples are supposed to be short-sighted, man, is that ever a misapplication ... of my experience with respect to what some very brave people did in the world in the past four or five or six hundred years,” he said. “Much of it doesn’t show a short-sighted vision of the world to me.”
Later in the proceedings, Justice Bell said, “maybe I was being over-sensitive” in raising objections to the concept of two-eyed seeing.
In a statement to The Globe and Mail on Sunday, Mr. Gunvaldsen-Klaassen said that the three environmental groups involved in the case “strongly disagree with the negative comments from the bench about the guiding principle” of two-eyed seeing.
“As predominantly settler organizations, it is incumbent on us to name and address systemic inequities and biases that disproportionately harm Indigenous peoples and communities,” he said. “It is essential to dismantle the white colonial privilege that exists within the legal profession and the administration of justice in Canada. This work is critical to building a more accessible justice system – one that is free of arbitrary barriers created by prejudice and white privilege, and trusted by all people in Canada.”
Ms. Wilson-Raybould added the justice system has interacted with Indigenous peoples differently, reflecting the legacy of deeply rooted colonialism.
“It is time for greater leadership by the bench, the bar and governments to move these changes forward in a systematic way,’ she said.
This is not the first time Justice Bell has engendered controversy. In 2017, he wrote a character reference for former federal judge Robin Camp after he stepped down following a Canadian Judicial Council recommendation that he be removed from the bench.
While sitting as a judge in 2014, Mr. Camp had asked why a rape complainant didn’t resist by keeping her knees together.
Justice Bell, a friend of Mr. Camp’s, wrote a letter of support to allow him to rejoin the legal profession. “He’s just a very, very good person,” he wrote.
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Robert Fife