MACLEAN'S REPORTS

THE JUDGE VS. THE BUREAUCRATS: a northern adventure of the 1960s

July 27 1963

MACLEAN'S REPORTS

THE JUDGE VS. THE BUREAUCRATS: a northern adventure of the 1960s

July 27 1963

MACLEAN'S REPORTS

THE JUDGE VS. THE BUREAUCRATS: a northern adventure of the 1960s

We have here an Ottawa colonial bureaucracy which has become swollen with its own authority and has attempted to ride roughshod over the rights and liberties of its subjects. — MR. JUSTICE J. H. SISSONS, justice of the territorial court of the Northwest Territories.

STRONG WORDS for a Canadian judge, speaking about the government that hires him. But few judges anywhere believe as strongly as John Howard Sissons that something is wrong in their own bailiwick. Sissons is an otherwise kindly and professorial seventy-one-year-old who has been meting out justice to whites, Indians and Eskimos since 1955 in a territory that covers forty percent of Canada’s area. In that brief time he has already become something of a legend, partly because of his 40,000 miles-a-year schedule and partly through the warmth and sympathy he has shown in his judgments. At the same time he has carried on a running war with Ottawa, firing off a steady barrage of letters, reports and memos whenever he feels the southern slickers don’t know what they’re talking about — which is pretty often. He has never shied away from blunt language. One letter in his file, addressed to Alvin Hamilton when Hamilton was minister of northern affairs and national resources, begins, “Dear Mr. Hamilton: The administration of justice in the Northwest Territories is a mess . . .” What is making Sissons angry now is a proposal by the Liberal government to implement an idea it inherited from the Conservatives: to divide the NWT into two territories, Mackenzie and Nunassiaq, each of which would be administered from Ottawa. To Sissons’ mind, thic is only one more dodge to keep self-government away from the people of the north. He believes that the seat of territorial government should be moved to the NWT now, and that the ultimate goal should be the creation of a new northern province. This goal, he believes, could be achieved by July 1, 1967. In support of his argument, he points out that the NWT once had self-government, with its own lieutenant-governor, executive council and legislative council, from the early 1870s until the turn of the century. But when the new

provinces of Saskatchewan and Alberta were created from most of the territories’ arable lands in 1905, Ottawa rescinded autonomy for the rest. Furthermore, he says, in taking away local government, Ottawa has also shortchanged the Indians and Eskimos who were guaranteed a number of rights by the original acts of 1867, but have not been properly looked after since.

If they have not, it is no fault of Sissons. His constitutional war with the bureaucrats has been waged mostly through briefs circulated among people of influence in the north, and correspondence with Ottawa. But he has put the full weight of his bench behind his beliefs in human justice for the native peoples, and in his eight years in the north his judgments have set down vital principles.

Sissons was born in Orillia, Ont., but moved west as a young man. From the 1920s until his appointment to the north, he was a busy and successful lawyer and judge in, and from 1940 to 1945 the Liberal MP for, Alberta's Peace River country. When the government asked him to take on the demanding joh it had created in 1955 to fill a long-felt need in the NWT (previously justice was handed out by “stipendiary magistrates” who were often months behind their schedule), he jumped at the chance “to do something really worthwhile in my final years on the bench.” And ever since he has hopped around the Barren Lands, trying to “take justice to every man’s door.”

SIXTY-DAY SENTENCES FOR MERCY KILLINGS

The people to whose doors he has brought his most remarkable decisions have been the Eskimos. In many cases he has had to set precedents — there is virtually no Eskimo legislation comparable to the Indian Act — and his precedents tended to temper the white man’s justice with the traditional laws of the north. He has faced the fact that euthanasia for old people is a bounden duty for many young Eskimos; his sentences in cases of mercy killing have been as light as sixty days. In all his rulings, though, he has been careful to seek out the legal bases. In 1959, he reached back for a royal proclamation of 1763 that established Eskimo hunting rights, and dismissed a charge against an Eskimo of illegally killing a muskox, ending his judgment with a typical flourish: “In these days when there is much talk of the Canadian Bill of Rights, it is well to keep in mind the rights of Eskimos.”

Time and again, Sissons’ unusual — for a white man — respect for Eskimos and their customs comes through in his decisions. In 1961, he was asked by the public administrator of the Arctic-Hudson Bay judicial district to rule on the estate of an Eskimo named Noah E6-465, who had died intestate, leaving some $26,000 in insurance. Noah had a widow, but they had been married only by Eskimo custom. The department of northern affairs submitted a lengthy written argument that said in effect that Noah and his wife had had lots of opportunity for a good Christian wedding but had chosen to adopt “the Eskimo custom of concubinage.” Sissons’ decision was vital, since if he ruled against the marriage, thousands of Eskimos would become, overnight as it were, illegitimate, and the future of inheritance among them would be chaotic. His judgment first disposed of northern affairs’ “fanciful and

scandalous argument,” which, he wrote, cast “unwarranted aspersions on Noah and (his widow) and on Eskimos . . . The sexual customs of the Eskimos may be different from ours but that does not constitute immorality.” Then he went on to liken Eskimo marriages to the old English custom of consensual marriage, which was still legally valid when the NWT were first set up. No further legislation, he found, had counteracted this principle in the north, and he ruled that the Eskimo marriage was valid. In a similar case, he found Eskimo adoption practices were also legal, even though they might not meet the letter of the white man’s law.

Even aside from the legal precedents they establish, Sissons’ decisions make fascinating reading. Many of the reports of his cases carry paragraphs of local lore, or travel information: “Indeed, the enforced stay at Broughton Island proved helpful. Several canoes arrived from Padloping Island with relatives and friends of Noah and Igah . . . The court and counsel visited and talked with these people . . . and secured a better understanding and appreciation of the present matter and the people involved.” So do many of his letters to Ottawa: “I do not likè guilty pleas from Eskimos, particularly when given through an interpreter who is often the special constable. I am told the Eskimos have no corresponding word for guilty.”

But it is not likely that even Sissons will be able to hand dow;. justice that will satisfy his own high standards as long as he is blocked by legislation passed by people who do not know the north. As well as a new method of government that would aim toward provincial status, he believes, the NWT need new treaties of their own with both the Indians and the Eskimos.