Prof. Hadley Friedland and PhD student Naiomi Metallic publish work in special edition

Collection rewrites SCC decisions as fictional Indigenous Nations Court

Sarah Kent - 21 July 2021

Assistant Professor Hadley Friedland and PhD student Naiomi Metallic of the University of Alberta Faculty of Law have each published new work in a special edition of the Canadian Native Law Reporter.

Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence features rewritten Supreme Court of Canada decisions from the perspective of a fictional “Indigenous Nations Court” and was co-edited by Metallic.

The collection responds to concerns that SCC decisions are written by judges without sufficient understanding of Indigenous peoples’ unique experiences and legal orders.

Friedland’s article is set up as a reference question that responds to the 1983 SCC case Racine v Woods, a binding precedent used to determine best interests of the child analysis.

The original SCC decision, which determined that bonding is more important than culture for an Indigenous child, runs counter to Indigenous legal principles and current research on attachment, writes Friedland.

Metallic’s contribution issues a decision in the 2010 SCC case NIL/TU,O and Native Child v BCGSEU and CEPUC, which held that “unions applying for certification to represent employees of Indigenous-run child and family agencies ought to be certified under provincial labour relations legislation.”

As Metallic states in her decision, the court failed to consider the unique Indigenous context of the case and that Indigenous groups “are governments in their own right, with their own law-making powers and responsibilities.”

Both Friedland and Metallic’s articles are timely, as Bill C-92, An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, may create the opportunity for courts to revisit these cases.