FOR IMMEDIATE RELEASE
13 July 2021
OTTAWA, ONT – On May 25th, 2021, Federal Court Justice Richard Bell voiced his strong objections to the practice of recognizing traditional and unceded Indigenous lands within courtroom procedures. In response to these comments, the Indigenous Bar Association in Canada (the “IBA”) wishes to express its extreme disappointment.
During a recent and ongoing judicial review application, Justice Richard Bell stated that providing “regard” to Indigenous territory “creates a problem for the court.” Proceeding to question whether counsel “understand[s] the dilemma that [land acknowledgments] put judges in,” he also opined to the effect that land recognition is inappropriate within courtroom settings. Where participants in the court system happen to “feel strongly” about acknowledging Indigenous lands, they should, according to Justice Bell, seek Indigenous permission for land-access instead of expressing their sentiments to the judiciary.
The IBA is a national non-profit association comprised of First Nations, Inuit and Métis lawyers, judges, academic’s, law students and legal professionals from across Canada. As an organization dedicated to, among other things, the recognition, promotion, and respect of Indigenous laws, legal cultures and traditions, the IBA remains deeply troubled by these remarks.
Though land acknowledgments are in some ways a peripheral gesture in Canada’s ongoing process of reconciliation, and are not themselves without controversy among Indigenous groups on Turtle Island, they have nonetheless become increasingly common practice. In addition, for many people, land acknowledgements signal the bare minimum demonstration of solidarity and commitment to reconciliation in many circumstances.
For centuries, territorial acknowledgments have existed as an indispensable aspect of Indigenous diplomacy, and for over a decade these statements have been customarily accepted within adjudicative processes, educational institutions, and courtrooms. Aside from denying the widespread acceptance (or at-least tolerance) that land acknowledgments have gained within contemporary legal culture, Justice Bell’s remarks about the practice incorrectly imply that these statements are at once political, problematic, and inappropriate within legal processes. In other words, the practice of land acknowledgements is incompatible with judicial neutrality, and therefore is something of an affront to Canadian sovereignty.
The IBA’s view is that nothing could be further from the truth. The overarching purpose of these statements, since at-least the 94 Calls to Action of the Truth and Reconciliation Commission, has been to foster recognition of Indigenous history and honour the past, present, and future contributions of Indigenous peoples to what is now known as Canada. While part of the aim of land acknowledgements is to recognize the historical oppression of Indigenous peoples by institutions of colonial power, as well as how that oppression has influenced relationships between Indigenous and non-Indigenous Peoples, they also recognize accepted facts. Namely that, in the words of the Supreme Court of Canada, “Aboriginal peoples were here when Europeans came, and were never conquered.”
In addition, land acknowledgments are commonplace and unproblematic within the Supreme Court of Canada. If acceptable practice at Canada’s highest court, it is hard to understand why the same gesture of respect and acknowledgment finds criticism in the courts below.
In the IBA’s view, land acknowledgments represent a step forward in the process of reconciliation currently underway in Canada. Indeed, land acknowledgments also serve important educative, reconciliatory, and reformative purposes. As such, they aspire to be more than just a tip of the cap to Indigenous histories or a simple and often impertinent request to tread upon unceded and traditional territories.
Rather than questioning their inclusion as “problematic” the IBA encourages Canadian courtroom procedure to embrace land acknowledgements—including by working with Indigenous communities on who’s traditional territory various courtrooms are situated to identify appropriation statement of recognition—as a way to foster an increasingly positive relationship between Indigenous populations and Canadian society.
 “Senior Federal Court judge under fire for objections to Indigenous principles and land acknowledgments,” The Globe and Mail, June 13, 2021, online: <www.theglobeandmail.com/politics/article-senior-federal-court-judge-under-fire-for-objections-to-indigenous>.