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Thursday Thinkpiece: McMahon on the Excruciatingly Gradual Civilization of Canada’s Legal System

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Why Did It Take So Long for Indian Residential School Claims to Come to Court? The Excruciatingly Gradual Civilization of Canada’s Legal System.

Thomas L. McMahon (SSRN profile) was Executive Secretary of Manitoba’s Aboriginal Justice Inquiry (1988-1991) and General Legal Counsel of the Truth and Reconciliation Commission (2009-2015), and in the interim was a Justice Canada lawyer.

Excerpt: pp. 1-4, 14-19, 26-30, 39-41
[Footnotes omitted. They can be found in the original via the link above]

“State Parties … condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race”

“Every child should have certain basic rights such as: the right to be wanted, the right to be healthy, the right to live in a healthy environment… and the right to continuous loving care.”

In 1857, Canada (the Province of Canada, a British colony from 1841 to 1867) enacted a law entitled Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the Laws Relating to Indians (commonly known as the Gradual Civilization Act). The Act’s name (and its provisions) make it clear that “Indian Tribes” were not “civilized” and that the far more civilized British subjects wanted to help them become civilized, but not too quickly, just gradually. A Nova Scotia County Court held in 1929 that a 1752 treaty with the Micmacs was legally meaningless, basing this on a distinction between a “civilized nation” and “uncivilized people or savages.” Oh, how civilized we were! The Act does not define “civilization” or “civilized” and does not use the term except in the opening sentence of its preamble. It is clear that “civilized” is intended to mean “people who think and act like us.” In this paper, I speak about the gradual civilization of Canada’s legal system, and by “civilization” I mean treating people with different cultures, languages, religions, beliefs, skills and skin colours with respect, dignity and equality. By equality, I do not mean removing indigenous rights nor making everyone think and act the same way. I mean respecting everyone’s legal rights, understanding that everyone has their own set of circumstances which carries with them certain legal rights. We cannot wish away legal rights of some people and call that equality.

Not too many years after enacting the Gradual Civilization Act, Canada became a country and implemented its now infamous residential schools policy. This policy gave form to the goal of gradual civilization, removing indigenous children from their homes, and putting them into schools run by churches in order to gradually civilize them. Once in the schools, they were given sub-standard education, put into dangerous buildings, given inadequate and sometimes inedible food and poor health care, and died by the thousands, mostly without notification to their parents or any possibility of burials at home. In the schools they had their names, languages, religions and cultures taken away from them. For most of the residential school period they were not allowed to vote or attend university and allowing them to compete with non-indigenous peoples in any endeavor, including farming and education, was never contemplated. This was the “gradual civilization” that the more civilized British society would inflict on them.

And throughout this period the legal system did nothing to protect those indigenous children. It was not until approximately 1990 that Canada’s legal system was civilized enough to provide some limited form of recognition of the harms done to indigenous children by Canada through the residential schools and some limited compensation for those harms. What then were the changes in Canada’s legal system that occurred over those 50 years and that finally allowed some measure of compensation and recognition of residential school harms to occur?

The purpose of this article is simply to list the various changes – the gradual civilization – of Canada’s legal system that finally resulted in some limited measure of recognition, compensation and perhaps protection of indigenous children. This is my selection of key events during the gradual civilization of Canada’s legal system as it relates to residential school claims and indigenous rights generally. Others undoubtedly would add more and different events.

After 500 years of total discrimination by the state against indigenous peoples approved by law, it would take 50 years of gradual improvements before it was possible for residential school claims to proceed to court. This did not happen until virtually all residential schools were already closed. The second half of the 20th century saw a significant shift in legal rights recognition in Canada. Early in the century Canada slowly began to say “no” to discrimination by granting women the right to vote, beginning with Manitoba in 1916. This was followed in 1929 by the Judicial Committee of the Privy Council in England’s declaration that women could be “qualified persons” (a term found in the British North America Act) for the purposes of who could be appointed to the Canadian Senate. Edwards v. A.-G. Can., [1930] A.C. 124. In that case, Lord Sankey stated that Canada’s constitution is “a living tree capable of growth and expansion within its natural limits,” thus allowing it to respond to contemporary issues.

In 1933, Polish lawyer Raphael Lemkin made a presentation to the Legal Council of the League of Nations conference on international criminal law, for which he prepared an essay on the Crime of Barbarity, positioned as a crime against international law. This conceptualization was prompted by the 1933 massacres in Iraq against the Assyrians and based on the massacres against the Armenians in 1915, the concept of this crime later evolved into the idea of genocide. Lemkin coined the word genocide in 1944 from the root words genos (Greek for family, tribe, or race) and -cide (Latin for killing), first using the word in print in Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress (1944).

The Holocaust and the end of World War II brought profound changes in international law and ideas about racial equality, which in turn began the gradual civilization of Canada’s legal system. Anyone thinking that the Magna Carta or the English Bill of Rights began the gradual civilization of the English legal system need only ask: what did those documents do for indigenous peoples in the western hemisphere?

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations in 1948. One day later, the United Nations adopted the Universal Declaration of Human Rights. Racial equality was to become the aspirational norm, however slowly that gradual civilizing trend might take.

Starting in 1974, various countries created commissions of inquiry under different names that have been grouped together as “Truth and Reconciliation Commissions.” In fact, governments have held inquiries of different kinds from time immemorial. In Canada, the tradition has been realized in inquests, inquiries under federal and provincial Inquiries Acts, and Royal Commissions. Of course, there have been numerous inquiries into discrimination against indigenous peoples in Canada (and Australia), with a flood of such inquiries during the period from 1975-1995. The Nuremberg Trials after World War II (1945-1946) might be considered a type of truth and reconciliation commission.

According to the U.S. Institute of Peace, the first “truth commission” was the Commission of Inquiry into the Disappearances of People in Uganda since 25 January, 1971. The Commission started in 1974. Its report was not made public. This was followed by Brazil (1979), Bolivia (1982), Zimbabwe (1983), Argentina (1983), Uganda (1986), Peru (1986 and 2001), Nepal (1990), Chad (1990), Chile (1990 and 2003). Of these, it is probable that Argentina’s report produced the greatest international attention. Their report “No More” (“Nunca Mas”) was a bestseller in Argentina. By 1990, the idea of truth commissions was well known internationally. South Africa had probably the world’s most famous Truth and Reconciliation Commission, and the one that undoubtedly was reported most extensively in Canada, which operated from 1995 to 2002.

All of this influenced Canadian governments to create inquiries such as the Manitoba Aboriginal Justice Inquiry, the Royal Commission on Aboriginal Peoples (RCAP) and ultimately the Truth and Reconciliation Commission of Canada.

While indigenous rights were making progress in the courts, the Canadian legal system was also slowly becoming more civilized in its treatment of children. In the 1975 Ontario judgment Re Brown, (1975), 9 O.R. (2d) 185 at 192 (Ont. Co. Ct.), Stortini Co. Ct. J. stated:

Every child should have certain basic rights such as: the right to be wanted, the right to be healthy, the right to live in a healthy environment… and the right to continuous loving care.

In 1976, the International Covenant on Civil and Political Rights, first adopted by the United Nations General Assembly in 1966, came into force. When the Supreme Court upheld the Indian Act’s discriminatory provisions on Indian status for women, Sandra Lovelace took her case before the UN Human Rights Committee, which, in 1981, found Canada in breach of the International Covenant on Civil and Political Rights. The international legal system began to be seen as a possibly effective way for indigenous Canadians to assert, protect and defend their rights. In 2005 Lovelace became the first indigenous woman appointed to the Senate. Thus, indigenous Canadians could see that they might also have some success pursuing their rights in international fora. Between Calder and Lovelace, the idea of indigenous peoples initiating claims before tribunals and achieving some measure of success helped create the conditions that would ultimately lead to residential school claims going to court.

Despite these various improvements for indigenous rights in this era, every decision to proceed to court was fraught with risk and expense. Litigants struggled with concerns about acknowledging the legitimacy of the oppressors’ courts, about what evidence the non-indigenous court would require and accept from indigenous persons about their histories, who would pay for hiring the lawyers and preparing the cases, and which cases would have the best chance of success, as well as what harms might occur if the non-indigenous court rejected the indigenous arguments or severely limited their impact.

The idea that indigenous rights could be subject to whatever the non-indigenous Parliament wished to say about indigenous rights has been continuously supported by the non-indigenous courts in Canada, from the earliest court decisions including the famous St. Catharine’s Milling case to the present day. For example, in Kruger and al. v. The Queen, [1978] 1 S.C.R. 104, the unanimous Supreme Court ruled, per Dickson C.J., “However abundant the right of Indians to hunt and to fish, there can be no doubt that such right is subject to regulation and curtailment by the appropriate legislative authority.” In a conflict between an indigenous rights and legislation, it has always been the case that it is the indigenous rights that will have to give way.

In 1979, Paul Leroux, boys’ supervisor in Grollier Hall, Inuvik, was convicted of contributing to the delinquency of a minor and sentenced to four months in jail. Another small step in the gradual civilization of Canada’s legal system.

Mahoney J. stated in Baker Lake (Hamlet) v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 (T.D.) that indigenous rights are not “proprietary” rights and cannot infringe on the proprietary rights of settlers who have acquired their own propriety rights as private landowners. Even if indigenous rights were once proprietary, the proprietary nature of those rights was extinguished for all time by the King in England when he gave one-third of Canada to the Hudson Bay Company in 1670. He stated:

Once a statute has been validly enacted, it must be given effect. If its necessary effect is toabridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right.” (para. 112)

The coexistence of an aboriginal title with the estate of the ordinary private landholder is readily recognized as an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of a private owner to peaceful enjoyment of his land.

Canadian courts have, to date, successfully avoided the necessity of defining just what an aboriginal title is. [my emphasis]

It is hard to resist saying: how clever of those non-indigenous courts to “succeed” in avoiding the most important question there is for indigenous peoples.

Yet despite all of the above, the courts have generally found some rhetoric or partial result for indigenous peoples, just so long as the result does not upset the status quo too much. Mahoney J. managed to give some content to indigenous rights: “However, its [indigenous title] coexistence with the radical title of the Crown to land is characteristic of aboriginal title … I therefore find that the Royal Charter of May 2, 1670, did not extinguish aboriginal title in Rupert’s Land. Nothing in the 1690 Act of Parliament that confirmed the Charter had any bearing on this question. Likewise, I find nothing in the Imperial Order in Council of June 23, 1870, whereby Rupert’s Land was admitted to Canada that had any effect on aboriginal title.” (para. 102-103, citations omitted)

So Baker Hamlet is now thought of as a “victory” for indigenous rights because no Act of Parliament or Order in Council or Royal Decree extinguished the rights in question.

In 1981, former students of the Shingwauk school in Sault Ste. Marie, Ontario, organized a reunion, which they held at the former school site. By then, the site was part of Algoma University. The reunion inspired Michael Cachagee and other Survivors to found the Children of Shingwauk Alumni Association. The association’s mission was to provide for the well-being of alumni, their families, and their communities through mutual encouragement and support.

From 1980 to 1982, Prime Minister Trudeau proposed repatriating Canada’s constitution from Great Britain, and included the creation of a constitutionally entrenched Bill of Rights. His government did not consult indigenous Canadians and the proposal made very little reference to indigenous rights. After extensive negotiations with provincial governments and after a reference to the Supreme Court of Canada, Trudeau decided to ask the Parliament in Great Britain to repatriate the constitution based on a resolution from Canada’s federal Parliament. However, he referred the proposed text of the resolution to a Special Committee of the Senate and the House of Commons on the Constitution of Canada. Indigenous groups became concerned that agreements affirming indigenous rights and title would no longer hold legal weight, that patriation would be another assimilationist policy, and that indigenous peoples needed to be included and recognized in the constitutional framework.

Indigenous people campaigned hard and effectively, and ultimately won the inclusion of s. 35 and s. 25 into the Constitution Act, 1982. As the Supreme Court of Canada said in R. v. Sparrow, [1990] 1 SCR 1075 “For many years, the rights of the Indians to their aboriginal lands — certainly as legal rights — were virtually ignored. … It is clear, then, that s. 35(1) of the Constitution Act, 1982 represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.” The legal implications of s. 35 and s. 25 remain filled with uncertainty, but their inclusion represents a continuing civilizing of the Canadian constitution and its recognition of indigenous rights, and an expansion of indigenous access to the legal system to assert and defend those rights.

Section 15 of the Canadian Charter of Rights and Freedoms creates a constitutional right to equality. Without needing a new court case, the government amended the Indian Act through a 1985 amendment called Bill C-31 to address the most egregious sexual discriminations that were demonstrated in the Bedard and Lovelace cases. This was a remarkable proof that indigenous people could use the legal system, in its various dimensions, to defend their rights and achieve some measure of equality. (However, Bill C-31 still did not eliminate all the forms of sexual discrimination against indigenous women and their children that were created by the Indian Act. Even today, more remains to be done.)

In the United States, and to a lesser extent in Canada, there were the civil rights and the women’s liberation movements that gained widespread public awareness, and important successes, in the 1960s, though they had their roots in times much earlier. No one could miss the important public dialogue, legal challenges and legal victories for African-Americans and women in many areas of their lives and their legal status. Seeing groups that were generally disempowered achieve some measure of justice inspired indigenous people as well.

In 1987, Nora Bernard, a former student of the Shubenacadie, Nova Scotia, school began interviewing fellow Survivors in the kitchen of her home in Truro, Nova Scotia. Her work led to the creation of the Shubenacadie Indian Residential School Survivors Association. The Manitoba Indian Residential School Survivors Society (later known as “Spirit Wind”) was founded in 1988 by Ray Mason from Peguis First Nation.

Beginning in 1987, a series of criminal prosecutions for abuse many years earlier at various Indian residential schools were finally brought. The Canadian legal system, however belatedly, was finally turning at least some attention to a few of the criminal acts that occurred at Indian residential schools.

In 1988, both Canada and the United States made formal apologies to their citizens of Japanese origin and provided compensation to them because of the mistreatment those citizens had been subjected to during World War II. This would be a key precedent for residential school claims.

Also in 1988, Parliament enacted changes to the Criminal Code as a response to the Badgley report of 1984. The new s. 153 made it a criminal offence for any person “who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency” to touch the young person, or ask the young person to touch the person in authority, for sexual purpose.

In February and March 1989, news media in Newfoundland broke open the story of sexual abuses at the Mount Cashel Orphanage run by the Christian Brothers of Ireland in Canada. As a result of the media publicity, the Crown prosecutor’s file on the physical and sexual abuse allegations at the Mount Cashel Orphanage dating back to the mid-1970’s was officially re-opened and the Royal Newfoundland Constabulary was instructed to complete its 1975 investigation and determine why charges were never laid. One of the victims filed a civil lawsuit against both the Government of Newfoundland and the Archdiocese of St. John’s which was later amended to seek damages of $18 million for nine former residents.

Multiple criminal investigations, a provincial government-commissioned Royal Commission of Inquiry (the Hughes Inquiry) and an Archdiocese of St. John’s-commissioned inquiry (the Winter Inquiry) resulted in criminal convictions and millions of dollars in court-imposed financial settlements. The school was closed in 1990. The Winters Inquiry released its report in 1990; the Royal Commission released its report in 1992.

The disclosures of abuse at the Mount Cashel Orphanage was one of the most important, most public series of allegations of widespread child sexual abuse ever heard by the Canadian public. Everyone could see the courage it took for the victims to come forward, and could empathize with how this abuse seriously affected their later lives. Any victim of institutionalized abuse could see that Canada was finally ready to have an open conversation about these issues and the legal system was at long last ready to investigate, find culpability and award compensation. I believe that the abuses suffered at the Mount Cashel Orphanage, the civil lawsuit and the publicity surrounding it, came together to become an incredibly important motivator for bringing residential school claims to court.

Later in 1989, the United Nations adopted the Convention on the Rights of the Child. The Holy See of the Roman Catholic Church ratified the Convention in 1990.

The Convention contains numerous clauses that summarize most of what was wrong with Indian residential schools in Canada, and which provide guidance for how Canada must, under international law, pursue reconciliation for the harms that Canada inflicted on indigenous children and their children. For the basis of future government actions, see in particular articles 19, 31, 34 and 39 below.

The Convention provides in article 2 that the rights of the child shall not be subject to discrimination on the basis of race, language or religion of their parents.

Article 8: 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

Article 9: 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 14: 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Article 16: 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

Article 19: 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 27: 1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.

Article 28: 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.

Article 29: 1. States Parties agree that the education of the child shall be directed to:

(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;

Article 30: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Article 31: 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

Article 34: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

Article 39: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment ; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

While important changes were happening to the rights of the child and indigenous title cases, along with other areas, changes were also emerging with respect to limitation periods. Limitation periods are one way courts may be prevented from hearing the substance of any particular dispute or claim. Under statutes of limitations, claimants have a fixed period of time after they discovered the harm done to them in which to file their claims.

The province of Alberta Law Reform Institute undertook important and influential studies on the subject of limitations that ultimately influenced amendments to the limitations statutes of most Canadian jurisdictions. The Institute’s 1989 report “Limitations” has some elements that should cause concern to indigenous plaintiffs.

The report emphasizes that the purpose of limitations statutes is “to give defendants as much protection as is reasonably possible without unduly jeopardizing the broader goal of the judicial system.” There is a very good reason for limitation periods: the evidentiary reason that as time passes, evidence goes missing, becomes unreliable or otherwise cannot provide a suitable basis for adjudication.

The report states “Defendants are more vulnerable to deteriorated evidence than are claimants.” I question whether it is true that defendants are more vulnerable to deteriorated evidence than claimants, especially in the context of child or domestic violence, where there are no other witnesses or written documentation, and where the claimant has the burden to prove the abuse actually occurred. Deteriorated evidence will often be the friend of the defendant, who will argue the claimant’s allegations are not proved.

Another important reason for limitation periods is “peace and repose.” Defendants have a right not to be continuously subject to potential claims that they do not know about. The report says that the interest in peace and repose applies both to individuals (and corporations) as well as to governments (society at large). The report says: “With respect to societal peace, there is a need for a time when, insofar as human transgressions are concerned, society is freed from stale conflicts and the slate is wiped clean. In assisting in the orderly resolution of conflicts, the judicial system should therefore shelter itself from old conflicts which could reasonably have been submitted for litigation in the past.” Given Canada’s history, it is obvious that the “trangressions” to be “wiped clean” will fall most heavily on indigenous plaintiffs.

Summary

From 1948 to 1990, numerous changes in the legal system finally made filing residential school claims a realistic possibility.

The principle of racial equality, at least on the face of the law, took hold in numerous ways, including the Canadian Charter of Rights and Freedoms, Convention on Genocide, and the Universal Declaration of Human Rights.

Many of the worst parts of the Indian Act were repealed.

Indigenous people organized and spoke forcefully about the importance of their indigenous identity, achieving some important successes in courts and political negotiations.

Non-indigenous courts slowly began to say that indigenous rights exist.

There were a small handful of convictions for child sexual abuse in residential schools.

Laws were enacted permitting lawsuits against the government.

Canadian society began talking about child abuse. The Mount Cashel Orphanage abuses were publicized and acted upon. The concept that children had rights took hold.

The federal government formally apologized and compensated for abuses of Japanese Canadians during the Second World War. Other apologies and acknowledgements, including those by churches with respect to residential school abuses, were given.

Important public inquiries about how the legal system treats indigenous people began. Internationally, truth and reconciliation commissions began.

Laws concerning “consent” in sexual assault were changed.

Class action lawsuits became possible.

Changes to limitation period laws created important impetus for thousands of residential school cases to be filed.

The Grand Chief of the Assembly of First Nations publicly talked about abuse he and others experienced at residential school, inspiring many other indigenous individuals to do the same.

A variety of books and studies, including judicial inquiries and the findings of a Royal Commission, were published to document life at residential schools.

It is not possible to say that any one of these improvements in the legal system can be credited with the residential school claims that were to follow. All were important. It took 50 years from the Second World War until approximately 1990, before the Canadian legal system was finally ready to receive residential school claims. The Canadian legal system had at long last become gradually civilized. As we will see in a future paper on the residential school court cases, the Canadian legal system must continue on this path of becoming ever-more civilized.

I am very appreciative of the gradual civilization that has occurred within Canada’s legal system. I hope for many more years of more civilization within Canada’s legal system; hopefully not quite so gradual.

Maybe before I die our courts will uniformly and unambiguously say that organizations with children in their care will be vicariously liable when their employees or volunteers physically or sexually abuse children in their care. Maybe given a choice between vulnerable, abused children and the budgets of corporations, the judges will finally choose to protect the children.

Maybe before I die our courts will say that indigenous peoples do not have to prove they existed before their claims will be taken seriously.

Maybe soon Sharon McIvor will finally see the complete eradication of sex-based discrimination in the Indian Act and she will get the public recognition she deserves for having waged this battle for so long and maybe even an apology from the Government of Canada.

Maybe before I die our courts will say that indigenous peoples have always engaged in trade, that the nature of the trade they engaged in changed over time, and as a result, the Canadian legal system will not limit Canada’s indigenous peoples to the type of trade they engaged in 200 years ago.

Maybe before I die there will be at least one indigenous judge on Canada’s Supreme Court.

Would that be asking for too much gradual civilization from our legal system?

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