Nova Scotia·Justice for all?

How the search for a Mi'kmaq 'super chief' shows the value of Indigenous judges

Naiomi Metallic was arguing an Aboriginal hunting rights case in New Brunswick when she unexpectedly found herself in search of a Mi’kmaq super chief to save the day.

Lawyer Naiomi Metallic says lawyers and judges get a 'blank look' when talking about Indigenous legal rights

Naiomi Metallic, an associate lawyer at Burchells LLP, chairs Aboriginal law and policy at Dalhousie University. (The Canadian Press)

Nova Scotia recently announced two landmark judicial appointments that brought the provincial bench closer to racial and gender equity than it has ever been, and some signs indicate it could be a permanent shift.

CBC News spoke to lawyers, social workers and members of the justice system to get a clear picture of where things stand today, and what remains to be done. This is part three of the three-part series: A Mi'kmaq perspective on the justice system. 

  Lawyer Naiomi Metallic was arguing an Aboriginal hunting rights case in New Brunswick when she unexpectedly found herself in search of a Mi'kmaq super chief to save the day.

"We argued that Mi'kmaq people are a nation, and because in that particular case we were in New Brunswick, it should be the Mi'kmaq people of New Brunswick who decide who gets to hunt," said Metallic, a senior associate with Burchells LLP in Halifax and a professor of law at Dalhousie's Shulich School of Law.

But the Crown attorney in the case argued Mi'kmaq people didn't constitute a nation when the treaty was signed back in the 1700s.

'Really quite insulting'

"He was trying to argue because we lacked a centralized system — and what he continued to reference in the case as a 'super chief' — then it was not possible to recognize us as a nation. Which is really quite insulting," said Metallic, who is Mi'kmaq and French. 

The court has not ruled on that argument yet. 

  "It just shows that there is still today cases where sometimes the arguments being made by lawyers on behalf of the Crown really tread on some very problematic, stereotypical assumptions and ideas," Metallic said.

  "I think if we're striving toward truth and reconciliation, we've got to make sure that people stop doing that." 

Nova Scotia Crown lawyer Alex Cameron argued on behalf of the province last year the government didn't need to consult with Mi'kmaq people over the Alton Gas storage plans near Stewiacke. 

His reasoning? A duty to consult only extended to "unconquered people," and the Mi'kmaq people in question were a conquered people, in his opinion. 

Premier Stephen McNeil and his government rejected the argument and removed it from the case. 

Putting the court's legitimacy 'in question'

Metallic said that's why Nova Scotia's legal system needs equity — so Mi'kmaq people don't have to constantly educate other lawyers and judges about their history, culture and legal rights.

"They just get this blank look on their face and it's very difficult to have the time to educate judges on our histories and our background."

Like African Nova Scotians, Mi'kmaq people are under-represented on the paid side of the criminal justice system (police, lawyers and judges), and over-represented in the unpaid side (as victims and as people convicted of crimes.) 

"It does put the legitimacy of the court into question," said Metallic.

"Think of it from the point of view of somebody who is from the Mi'kmaq or black community. If you were standing in front of these judges and there's nobody who looks like you, nobody from your background. Who you are and where you come from all work into the decision matrix. If nobody is from your background, you start to question: whose justice system is this?" 

She came through Dalhousie's Indigenous Blacks and Mi'kmaq program and said the school has graduated 180 black or Mi'kmaq lawyers in recent years. Bringing that equity to the bench will improve the justice system, she said.

Jordan's Principle

Jeremy Meawasige from the Pictou Landing band in Nova Scotia needs special care, and got the funding thanks to Jordan's Principle.

She points to a ruling from Federal Court Judge Leonard Mandamin about a Mi'kmaq teenager named Jeremy Meawasige. The Pictou Landing First Nation youth has severe disabilities and needs care. The federal government argued it only had to pay a fraction of the costs.

But Mandamin, an Indigenous Ontario man, ruled against the government. He found that Jordan's Principle applied, which means Indigenous children should get the public help they need, regardless of jurisdictional disputes. The ruling set a precedent that all First Nations children must have equal care as non-Indigenous children. 

  "Here is a judge who gets it, who understood the context, and [made] a good decision," Metallic said. 

Metallic said non-Indigenous judges should educate themselves about Indigenous issues while the province commits to keeping an equitable Mi'kmaq presence on the bench.