Indigenous Bar Association Calls upon the Government of Canada to Reconsider its Requirement of “Functional Bilinugualism” As It Applies to Indigenous Candidates for Appointment to the Supreme Court

by pmnationtalk on August 22, 20161364 Views


August 22, 2016



Ottawa, Ontario –

The Indigenous Bar Association of Canada (“IBA”) calls upon the Government of Canada to reconsider its requirement of “functional bilingualism” as it applies to Indigenous candidates for appointment to the Supreme Court of Canada in circumstances where the requirement would further perpetuate existing barriers to a more diverse and representative judiciary that is inclusive of Indigenous peoples.

The IBA also extends its congratulations to Stephen Kakfwi, the former Premier of the Northwest Territories and President of the Dene Nation, on his recent appointment to the Independent Advisory Board for the Supreme Court of Canada.  The IBA is confident that the appointment of Mr. Kakfwi to the Independent Advisory Board will not only enhance the transparency and fairness of the Supreme Court selection process but also provide much needed perspective regarding the circumstances of Indigenous people in Canada.

“On behalf of the IBA, I wish to extend my sincere congratulations to Mr. Stephen Kakfwi on his appointment to the Independent Advisory Board for the Supreme Court of Canada. It is critical that the next appointment to the Supreme Court of Canada reflect the diversity of Canada which includes the Indigenous people of this country.  I echo the recent comments of Osgoode Hall Law Dean, Lorne Sossin, that ‘there are indigenous candidates in Canadian courts, law faculties and in law practice that the government could appoint that could both enhance the quality of the Court, its stature and its expertise,’” said Koren Lightning-Earle, President of the Indigenous Bar Association.

On August 2, 2016, the Government of Canada announced that it has created an independent non-partisan advisory board that will submit a short list of 3 to 5 individuals for consideration by the Prime Minister. The Independent Advisory Board has been mandated to recommend qualified, functionally bilingual candidates who reflect a diversity of backgrounds and experiences for appointment to the Supreme Court of Canada.

The IBA welcomes any initiative that requires candidates to the Supreme Court of Canada reflect a diversity of backgrounds and experiences representative of this country’s historical development.  This includes Indigenous peoples.

The requirement that candidates to the highest court be functionally “bilingual” presents an additional barrier for Indigenous candidates.  Canada’s assimilatory laws and policies have significantly impacted and marginalized Indigenous peoples, cultures and languages.  Indian Residential Schools in particular insisted on the use of the French or English language only and the elimination of the original languages of Indigenous children. Given the legacy of Canada’s assimilatory laws and policies, the strict requirement of bilingualism is not appropriate and runs contrary to the imperative of reconciliation.

In its final report, the Truth & Reconciliation Commission called for the transformation of Canada’s legal system through greater inclusion of Indigenous peoples:

A commitment to truth and reconciliation demands that Canada’s legal system be transformed. It must ensure that Aboriginals peoples have greater ownership of, participation in, and access to its central driving forces. Canada’s constitution must become truly a constitution for all of Canada. Aboriginal peoples need to become the law’s architects and interpreters… (Vol. 6, p. 51)

The Government of Canada has publicly endorsed the findings of the Truth and Reconciliation Commission and committed to the implementation of all “calls to action”. While the Government of Canada has expressed a commitment to diversity and inclusiveness, the requirement that an Indigenous person be functionally bilingual before being considered for appointment to the Supreme Court of Canada detracts from diversity, operates against inclusion, and impedes reconciliation.

Given the substantial under representation of Indigenous peoples in the judiciary, barriers for the greater inclusion of Indigenous peoples should be removed and not maintained. “While the numbers of Indigenous lawyers, legal scholars and judges in Canada continues to grow, the reality is that because of historic inequalities that persist today, the Indigenous Bar is quite small compared to other visible minority groups.  The requirement of functional bilingualism is an added obstacle that will significantly reduce the number of qualified Indigenous candidates for the Supreme Court of Canada. It is our hope that the Government of Canada will remove the barrier and move forward with reconciliation,” said Koren Lightning-Earle, President of the Indigenous Bar Association.

For further information please contact: Koren Lightning-Earle, President at (780) 721-2345 or via email

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