For the first time in history, a Canadian court has issued a ruling in two Indigenous languages. The ruling in Whalen v Fort McMurray No 468 First Nation by the Canadian Federal Court – a summary of which was issued in both Cree and Dene – overturned the suspension of Fort McMurray No. 468 First Nation band councillor Samantha Whalen. As explained by Whalen herself, the issuance of the decision in Cree and Dene was “a win for Cree and Dene speaking communities”, as it allowed the decision to be accessible to language speakers such as the Elders who had elected her in the first place. For many, this historic ruling will help pave the way for a more inclusive legal landscape, something which is extremely important in our current era of Reconciliation.
Canada has much to atone for in its historical treatment of Indigenous Peoples. Its infamous residential school system represented not only institutionalized racism, but a deliberate attempt to eradicate Indigenous culture and language. Thus, one important aspect of Reconciliation in Canada includes recognition and respect for Indigenous languages and traditions – and in Canadian courts, this includes the use of Indigenous languages and legal traditions when working with Indigenous litigants. As explained by Indigenous litigator and advocate Katherine Hensel, Canada’s legal system is often inconsistent with Indigenous Peoples and their legal traditions. Thus, “to have an Indigenous language incorporated in any way into judicial proceedings is one of the preconditions to having a justice system that reflects [an] Indigenous litigant’s values”. Including Indigenous languages also represents a step towards fulfilling the Calls to Action made by Canada’s Truth and Reconciliation Commission (TRC).
This unprecedented move at the Federal Court also belongs to a long-term vision of accessibility promoted by the Supreme Court of Canada. The Court’s newly appointed Chief Justice, Richard Wagner, has not only championed reconciliatory action in the court system, but has also pushed accountability and transparency, including the endorsement of a plain-language movement across the Canadian judicial system. This includes simplified plain-language summaries of court rulings, news conferences, and more public outreach initiatives.
Furthermore, Chief Justice Wagner, who in the past has championed Francophone language rights in Canadian courts, has exemplified a strong commitment to Reconciliation which has surely trickled down the judiciary. In December 2018, he dedicated the Supreme Court to Reconciliation “within [their] own jurisdiction”, and described Canada’s commitment to Reconciliation as “a long process [that] has to be done [and] has to be done the right way”. These two initiatives – plain-language accessibility across the courts and a push for Reconciliation in the judicial system – no doubt contributed to the decision to translate the ruling; indeed, Federal Court Justice Roger Lafrenière noted that the Court has paid close attention to the CJC Wagner’s words:
“Our court has been following what the Supreme Court has been saying … But in order to speak in plain language, we need to be understood as well. … For our court, we felt it was important that when Aboriginal people are involved in these proceedings that they also get to have access to these decisions – or at least a summary of it – in their language.”Justice Roger Lafrenière, Federal Court
Despite this ruling being the first of its kind, it is not the first time an Indigenous language has been used in a federal institution. In 2018, Cree-Métis Liberal MP Robert-Falcon Ouellette successfully championed live translation of Parliamentary speeches in more than 60 Indigenous languages. In 2017, he was also the first Member of Parliament to give a speech in an Indigenous language at the House of Commons when he addressed parliament entirely in Cree.
Described by Ouellette as “the most significant event for languages” in Canada since live French translation was made available in 1952, the provision of live Indigenous language translation challenges the notion that only French and English are deserving of translation in Parliament. Not only does Indigenous language translation promote accessibility, but it represents Reconciliation in action and Canada’s adherence to the TRC’s Calls to Action. By supporting Indigenous language translation, Parliament is setting the precedent that Indigenous languages are as important as English and French. This message has the potential to reach all branches of government – including the courts – if they are willing to listen.
The recent decision by the Federal Court to release a decision in Cree and Dene not only represents inclusion and accessibility, but also foreshadows the ability of Canadian courts to incorporate Indigenous values. Despite the court’s commendable initiative, one cannot substitute Indigenous language inclusion for the recognition and respect of sovereign Indigenous legal traditions within and beyond the Common Law system. This monumental and unprecedented decision should be seen as a step in the right direction, towards Canada’s fulfilment of the TRC’s Calls to Action, but it cannot be seen as a final destination.