Exploring Indigenous Justice Systems in Canada and Around the World

Day 1 – May 14, 2019

Setting the Stage: The Morality of Aboriginal Law - Revisited

Mark Walters, FR Scott Professor of Public and Constitutional Law, McGill University Faculty of Law

Twenty-five years ago, Professor Walters wrote “The Morality of Aboriginal Law” as a tribute to a famous book of philosophy – “The Morality of Law” by Lon L. Fuller in which Fuller establishes “forms” of law such as generality, prospectiveness, intelligibility and consistency. The intention was to question whether Indigenous conceptions of law had the same relationship between these forms of law and inner morality.

Since then, Professor Walters has engaged with, and learned from, Indigenous laws leading him to consider the concept of moral risk and revisit his earlier work and his naivety at the time.

“I’m not going to offer an argument defending my engagement with Indigenous Law from a moral perspective. On the contrary, my objective is to raise moral questions and doubts and problems about my own attempts to learn and write about Indigenous legal traditions and I offer these reflections, again, consistent with the theme of today, in spirit of respectful dialogue and deliberation...about how Indigenous legal traditions may play a meaningful part in Canadian public life.” 1. Respect

There is a moral imperative for each legal culture to engage with others, of seeking to understand them and to see the world through each other’s eyes. The risk of not trying to participate in the dialogue may be worse than the risk of participating and inevitably making some errors along the way.

The Van der PeetFootnote 3 decision of the Supreme Court of Canada represented an invitation to engage in a meaningful intercultural legal dialogue on the issue of which legal culture should provide the vantage point from which Aboriginal rights are to be defined. Years later, there exists little understanding in Canada about Indigenous Laws and government, or a willingness to cede control.

“I have circled back to it over the years and come to see that I couldn’t understand even the most basic elements of Canadian constitutional law without understanding Indigenous Law.” 2. Redefine 3. Rethink

Indigenous Law was observed and documented by early settlers. For example, in the Mohawk community of Tyendinaga, Crown officials recognized that the ceremonies themselves meant much more than the actual Treaty that followed in terms of defining the relationship.

“These ceremonies are proof that Indigenous Law was observed and respected by colonial law makers and were a central part of the treaty relationship which existed between the Crown and Indigenous communities.”

Other examples include the condolence ceremonies performed to solve conflict and seek justice with acts of reconciliation. The wiping of tears, opening ears, and clearing voices so that people can engage in rational discussion again were successful in re-establishing relationships and restoring balance. This demonstrated an Indigenous conception of the Rule of Law.

These relationships are visible in the Covenant Chain and other Treaties in which language such as “father” and “children” equates to duties of care rather than a power dynamic. Many Creation stories, for example where refuge was taken on the back of a turtle to create Turtle Island, or where animals and spirits deliberated in councils to address a dividing Earth, describe relationships that ground ideas of legality. These stories describe a world with understandings about how people ought to behave: a world of norms, law, and a rule of law. Legal order was thus a matter of seeking harmony between a complex shifting of normative domains. 1. Respect 2. Redefine 3. Rethink

Only once we have knowledge of Indigenous Legal Traditions can we begin to reconceive the entire Crown-Indigenous treaty relationship in a manner that recognizes that different legal cultures come together to make a normative world. In doing so we take a moral risk.

Panel #1: Recognizing and Revitalizing Indigenous Laws

Moderated by Kerry Sloan, SSHRC Postdoctoral Fellow, University of Saskatchewan College of Law; Assistant Professor, McGill Faculty of Law (appointed)

Panelists:

Mr. Benoit gave a brief history of the Métis ethnogenesis in Canada in the 1800s and their relationships with the Hudson’s Bay Company and their First Nations neighbours, including both civil disobedience and peace treaties. Through protecting their resources and rights and pushing back on the application of non-Métis laws, the Métis came to be Canada’s negotiating partner instead of wards of the Crown, culminating in the 1870 Métis Bill of Rights which stated that all customs and privileges of the territory would continue, including hunting laws. 2. Redefine 3. Rethink

Following the 1996 GrumboFootnote 4 case concerning Métis hunting rights under the Natural Resources Transfer Act, the Métis and Province of Manitoba entered into a Memorandum of Understanding to negotiate a co-management agreement to codify the existing legal practices. While the negotiations stalled, the Commission for the Métis Law of the Hunt was created and completed over 60 consultations with communities across the land. The most important conclusion was that the environment and wildlife – not just rights – needed protection, as land was required in order to exercise land-based rights. The Commission had four primary directives: 1. Respect 2. Redefine

  1. Identification of Métis Harvesters.
  2. Creation of a Conservation Trust Fund that hunters pay into by, for example, paying fees for large game.
  3. Codification of Laws, which led to the first edition of Métis Laws of the Hunt.
  4. Management – research, tags, and ways of recording information.

Métis Harvester cards were issued in 2004, followed by a series of prosecutions by the Province. The Manitoba Métis Federation (MMF) stepped in to pay for court costs as these individuals were fighting for a collective right.

Promising Practice: Enforcing Métis Hunting Rights

After implementing Métis hunting rights, the MMF considered enforcing the law by incorporating by reference Métis laws into Provincial laws, but ultimately used the Métis lens to address all hunting issues.

For example, when three harvesters in the north were found in possession of a cow moose with two calves, which had been taken illegally on private land without permission, the MMF set up a tribunal using Métis laws. The killing of two generations of moose in that way was a violation of Métis laws. The tribunal:

  1. Considered all impacted parties (the victims): the animal, the owner of the land, the owner of the crops damaged, and the Métis community itself; and
  2. Identified the consequences: apologies, reparations, suspension of hunting rights of big game for one year, and that the first animal harvested after one year be given to Elders.

While Métis Law has always been there, under the radar, revitalization has helped Métis communities with governance. Part of giving space is simply letting Indigenous groups do their own thing without setting up insurmountable barriers; Métis groups should not have to prove that their Nation fits into the federal government’s conception of government.

“If we want to talk about reconciliation and self-government, we already have it, so get out of our way.”

The concepts of recognition and revitalization are intimately connected. Recognition is part of revitalization, but sometimes not having that recognition is also part of revitalization in the sense that it provides you something to struggle for, someone to push back on. While Métis people could implement their laws, it is difficult - great ideas are hard to do, so working with other Indigenous groups is necessary. The MMF is drafting agreements on how to manage moose and fish and are hoping for co-management. Indigenous peoples could start making treaties amongst themselves.

Ms. Zarpa’s research looks at the Labrador Inuit Land Claims Agreement, specifically the Chapter 17 self-government provisions, to understand how the published and publicly accessible stories in relation to Inuit legal principles can be used in a 21st century context, and how they can be implemented in the legislative process in the Nunatsiavut government.

It is important for Inuit and Indigenous peoples to be at the table to determine how to incorporate Inuit and Indigenous Laws into national research. Funding is essential to opening up space for future projects driven by law; affirmative action measures could be undertaken to get more Indigenous professors within institutions as they carry different knowledge and ways of doing things.

“In my years of experiences, throughout post-secondary experiences…there hasn’t been a lot about what Inuit Laws mean. There hasn’t been a lot about Nunatsiavut, and our own particular governance structure, the relevance and the history of what my people have already created in their modern treaties.”

There is no university above the 55th parallel, which creates another barrier when finishing high school as it requires travelling far away to obtain a post-secondary education. Post-secondary institutions need to recognize the Inuit worldview and accredit these learning structures. Hunting, camping, fishing skills in the spring, beading, and being on the land are all types of learning that contain a different kind of law. 1. Respect 2. Redefine 3. Rethink 4. Resource

Implementing the Truth and Reconciliation Commission’s Calls to Action and the Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls for Justice at every level of government, including regional government, is key. Creating social equity will open opportunities for more conversations about Indigenous law. Legislation on the United Nations Declaration on the Rights of Indigenous Peoples would potentially allow the participation of Indigenous peoples in privileged spaces to contribute to discussions around Indigenous issues.

What constitutes Indigenous law must first be defined by community. Only then can we see what recognition from state governments would look like. We see some aspects of this process in the Inuit Labrador modern treaty, which represents a mixture of Inuit and western law. However, the challenge is to take or distill the principles coming out of stories and take the necessary steps to ensure these can be recognized as Inuit laws, to breathe life into these historical principles.

Diversity is necessary to represent the different populations but has to be determined by communities themselves. The diversity of government structures must be agreed upon by communities up north with the ability to negotiate as a population. Pan-Indigenous approaches discriminate indirectly. “Indigenous” often excludes Inuit. Each community has diverse populations, customs and languages.

Mr. Owen echoed the theme of moral risk, noting that there is a moral risk of overgeneralizing or romanticizing Indigenous Law, and that so doing can result in more violence. He noted that his settler mind was trained in a certain way of aspiring towards justice from long before he even went to law school, with that training leading him to believe that his version of justice was the version of justice. However, once he started practicing law, he began to recognize that doing his job properly through the worldview he was taught to uphold could not serve his clients in a way that was advancing a notion of justice. He was not aspiring to mino bidmadziwin (Anishinaabemowin: “the way of the good life”). Indigenous language, laws and cultures have been diminished and undermined, but they have not been erased. There is a continued risk for more benevolent diminishment of Indigenous law and thus keeping Indigenous law at the forefront is key. 1. Respect 3. Rethink

The tendency of institutional structures with power is to keep the status quo system and simply “allow” Indigenous ways of being and doing to be “added on” as enhancement. However, for law to be “lawful” and to be regarded as an authoritative source of reaching towards justice, space must be made to rebuild these systems in their own ways and not simply as “add ons”. Well-resourced institutions have a role in recognition in terms of facilitating recognition through Canada as a whole.

Panel #2: Enforcement of Indigenous Laws in Canada: Challenges and Opportunities

Moderated by Christine Kilfoil, Senior Counsel, RCMP Legal Services Unit, Justice Canada

Panelists:

Professor Metallic spoke about the Tripartite Forum, an initiative that brings together Mi’kmaq, Nova Scotia and federal officials. The Forum’s justice committee is currently engaged in a project about challenges within Nova Scotia and also nationally around enforcement of bylaws relating to public safety. 2. Redefine 4. Resource

The research revealed challenges in enforcing by-laws under the Indian Act, capacity issues in terms of a lack of funding by Indigenous Services Canada as well as a lack of clarity as to who is to enforce and prosecute by-laws. Neither federal nor provincial governments regularly prosecute band by-laws, leaving Bands to adjudicate issues themselves or find ways to work with provincial courts that are not always immersed in the culture. Police do not currently enforce civil by-laws, and the RCMP routinely questions by-laws and often refuses to enforce them. As communities cannot afford to hire enforcement officers, they must resort to other strategies (for instance, denial of services) to ensure community members respect their by-laws.

However, since the Minister no longer has the power to disallow by-laws after this power was repealed in 2014, there may be opportunity for a broad interpretive approach to these issues. The extent of the by-law power under the Indian Act should be examined and measures should be taken to consider how it might better be recognized and enforced. For example, the current moratorium on appointing section 107 Justices of the Peace in First Nation communities could be revisited. There is also a need to move towards more robust forms of courts in these communities. There is a need for both education and collaboration in this area, as well as a questioning of whether the Western concept of by-laws is the best tool available.

Chief Rempel discussed the 2016 Land Code for the K’omoks First Nation, which passed with 92% approval. The Code was tested in court: a tenant had acquired a home through a will and subsequently leased the home to non-Indigenous individuals. Eventually, an eviction notice was issued on behalf of the landlord but the tenants refused to leave the home. They were deemed to be trespassing. However, the RCMP took the position that the land code was not a “real law.” 1. Respect 2. Redefine 4. Resource

The decision highlights the problems that continue to persist around enforcement in Indigenous communities. The decision speaks to a clear need for education of the Attorney General’s office, the court system and the law enforcement community to ensure they are aware of the existence of by-laws, the matters they concern, and recognize them as valid.

Funding is the biggest stumbling block in enforcement. Given funding issues, it will be important to investigate innovative ideas, such as cost-sharing arrangements, for enforcement.

Mr. Louie’s community (Westbank First Nation) has been self-governing since 2006. Dating back to the first Indian Act, Indigenous peoples have been enforced as opposed to being the enforcers. Mr. Louie’s community is now trying to turn this around, and a Framework Agreement is in place. First Nations have the capacity to make their own laws, yet the reality is that under the Indian Act, Indigenous peoples did not have the right to enforce anything, received no recognition, and their customs and culture were ignored and taken away. 1. Respect 2. Redefine

First Nations have no intention of managing the old colonial system. Rather, they are looking for a process that they can lead that is flexible and has the support of each individual First Nation community in the country. Each First Nation has to decide what they do with these powers: what they protect and what they develop. They need to look at and respect their traditions and their governance.

Mr. Louie identified three branches of enforcement: a) internal systems (Elders’ committees), b) First Nations as government and c) police enforcement. The police do not know how to enforce Indigenous laws and by-laws, and thus we need to educate the police force. It is essential that it is clear as to how things operate in self-governing communities. There is an important role for provincial Attorneys General in guiding the rest of the provincial bureaucracy. First Nations communities should be designing laws themselves, with the knowledge that courts, and provincial and federal bodies will catch on over time.

The key is to change colonial attitude within government institutions, police and courts. The move towards new self-government models will require a great deal of understanding and awareness, and there will be a need for new law-making formats, models, by-laws and codes. For good governance practices and enforcement methods to be put in place, clarity will be required so that law enforcers know what they need to do when a charge or issue arises. It will take time for these understandings to be achieved, and changing current recruiting practices to ensure more representation of Indigenous peoples in the system would help with this transformation.

Grand Chief Daniels spoke to the systemic barriers to Justice, and the need to move towards a focus on restorative justice. In order to do so, more justice workers and judges need to be trained in restorative justice. We will also have to overcome the obstacle of determining which regional bodies will work together to ensure that this movement can gain momentum. Our goal needs to be decreasing the overrepresentation of Indigenous peoples in the criminal justice system, and this requires making the justice system more restorative. 1. Respect 2. Redefine

To progress further, Canada needs to provide funding and transfer their jurisdiction. The bureaucracy needs to move out of the way and let Indigenous people change the system; to stop holding on so tightly to things they do not understand, like how to implement things like restorative justice that are an Indigenous-driven approach.

Promising Practice: Administration of Justice in Manitoba

The Aboriginal Justice Inquiry in Manitoba (1988-91) examined “the relationship between the Aboriginal peoples of Manitoba and the justice system” and found systemic discrimination against Indigenous peoples.

Following the Inquiry, the Southern Chiefs of Manitoba took on administration of justice for their communities, but quickly realized that they were administering colonial policies. Instead, they focused their work on the restorative justice model. They have trained justice workers, lawyers and judges. Due to this success, they now have a Director of Justice and Justice workers in the community and are working with judges at provincial and federal level. Since then, there has been an increase in the number of diversions from the justice system, and a dramatic reduction in recidivism.

Finally, recruiting practices need to change. There needs to be an understanding of Indigenous values and beliefs through the education side of people in the current justice system – systems have learned behaviour and have conditioned people to not be so understanding of the Indigenous situation. To truly change the system, Indigenous peoples need to control a portion of it. There also needs to be a focus on mental health within public safety personnel, given the trauma that police and first responders experience. 2. Redefine

Panel #3: Indigenous Courts in Canada: Experience and lessons Learned

Moderated by Maegan Hough, Legal Counsel, Aboriginal Law Centre, Justice Canada

Panelists:

Justice Mandamin discussed the Tsuu T’ina concept of a Peacemaking Court, noting that the key to its success was that the community not only proposed a court but that those running the court were all Indigenous, with an Indigenous prosecutor, court clerks, counsel and judge and the court was located on First Nation land. The Tsuu T’ina wanted people who would implement the model, not debate it. 1. Respect 2. Redefine

Promising Practice: Tsuu T’ina Peacemaking and Siksika Askapiimohkiiks Courts

The Tsuu T’ina adapted a Piikani traditional approach to solving justice issues. The Piikani had decided to utilize traditional Blackfoot procedures, but to replace their medicine bundle containing Blackfoot law with Canadian law. The Tsuu T’ina learned from Piikani who trained the Tsuu T’ina peacemakers in their approach. Accordingly, the Tsuu T’ina peacemaker would gather the accused, the victim, family members and Elders. All would sit in a circle and conduct four rounds: what happened, how did it affect people, what to do about it, and a resolution agreement.

The Siksika adapted their own traditional mediation approach, Askapiimohkiiks, to suit their nation’s needs. Askapiimohkiiks involved a trained Siksika mediator and an Elder sitting with the parties to mediate and resolve family and child protection issues. The resolution agreement then would go before the Provincial Court which would decide matters based on that agreement.

These Peacemaking and Traditional Mediation Courts are successful because:

  1. The idea was initiated by the First Nation.
  2. The Courts are operated by Indigenous staff that respect the Indigenous practices.
  3. The Courts operate within the Indigenous community.

The Tsuu T’ina court had initially been proposed to address the issue of community members driving without insurance on band roads. However, the scope of the court was broadened. The success of peacemaking has included a decrease in reoffending. Both Tsuu T’ina Peacemaking and the Siksika Askapiimohkiiks work in partnership with the Provincial Court. If the process results in an acceptable resolution, the prosecutor would decide to withdraw or reduce charges. If there is to be a Court order or judgment, the resolution agreement is included in the outcome. If the offender fails to comply with the resolution agreement, the Court proceeds with the usual criminal justice process.

Chief Peacemaker Gord Reed discussed the importance of language and how the Tlingit way promotes love and integrity to further all things. How we are raised creates a place of belonging. Community plays a big role in how people conduct themselves. The Tlingit have a declaration about self-care and the way to treat other people that works for reconciling disputes.

Teslin Tlingit have been self-governing since the early 1990’s. There are 5 clans of the Inland Tlingit who run government, society and the justice system, which is a pillar of government. When people have a dispute, they consent to come together for mediation and clans can be held responsible for the actions of their clan members. When clans have conflict, the plan is for the whole community to come together in a circle. Once matters are dealt with, for instance through restitution, gifts, or public ceremonies, the matter is no longer discussed. It is like throwing a pebble in the water and once the last ripple is gone, it does not exist anymore and is not spoken of again. 1. Respect 2. Redefine 3. Rethink

Communities can establish a Peacemaker Court by keeping in mind that we are “Together today for our children tomorrow.” Communities need education and training, and to move towards the overall goal of their own appellate court by joining with other Tlingit communities in Yukon and Northern BC. Revitalising language must be part of the process. There is a need to restore harmony in community, to learn how to conduct ourselves, and to support others on this journey, things that are taught through language.

Impacts are being seen in Teslin. The Administration of Justice Agreement was signed in 2011 and the Chief Peacemaker was appointed in 2014. The Peacemaker Court uses a two-stage process. Stage 1, the present stage, is mediation. Stage 2 will be the adjudication of laws. There is lots of anticipation about enforcing Teslin Tlingit laws and dealing with issues in-house with support.

Ms King addressed how Akwesasne stays true to Mohawk values in light of the reality that it lies at the corner of multiple jurisdictions (Ontario, Quebec, and New York State). The starting point is the recognition of the need for Akwesasne’s own people to be Justices. Despite this need, Ms. King is one of the last Justices of the Peace appointed by virtue of s. 107 of the Indian Act. 1. Respect

Many of the concepts the Mohawk Council of Akwesasne uses in its justice system are not that different from ones we might see in the Canadian criminal justice system. There are, for instance, parallels between prison and the Akwesasne conception of banishment.

The Akwesasne justice system has a series of different branches. They have a court but they also have legislative development, enforcement and adjudication. Akwesasne has a law enacting procedural regulation and a legal review committee. Laws are voted on and, once passed, the law is posted in a registry. Akwesasne also has compliance officers and conservation officers to enforce their laws. Band funds are being used to cover all of these costs.

Akwesasne’s success is shown in part in the reality that their community wants to do more and further develop and expand its existing system. The community is looking for innovation in traffic regulation, mediation of disputes, and Akwesasne laws. The community is saying “why aren’t you doing more?”. They want them to increase faster.

“If you’re looking to design your own court system, do it. Get your direction from your own community.”

- Joyce King