3.0 Key Panel Discussion Themes
3.1 Concepts and Terminology
There is a need for greater awareness and understanding of the following terms as there is often confusion.
- Indigenous Justice (also called traditional justice or Indigenous legal traditions): laws and systems in place prior to European contact and, in some communities, still practised and implemented today.
- Customary Laws: legal customs, established patterns of behaviour specific to a nation, community, and culture.
- Western or Canadian Criminal Justice System: the dominant legal system established by English and French settlers. Criminal law is governed by the federal Criminal Code of Canada. The administration of justice is a provincial responsibility.
- Restorative Justice: a principled approach to justice based on the understanding that crime causes harm to people, relationships, and the community
3.2 Understanding What is Meant by “Justice”
3.2.1 Justice is much broader than the criminal justice system
Indigenous knowledge includes a holistic view of justice, and of life, whereby justice is not separate from all other aspects of culture, traditions, and ways of being. Justice is not based on punitive measures or approaches, but on restoration, harmony, and the goal of achieving balance in all aspects of life.
The word “justice” needs to encompass the need to put right the many societal harms imposed on Indigenous peoples for centuries, including by the Indian Residential School system, the 60’s Scoop, and the tragedy of missing and murdered Indigenous women. Indigenous Justice processes exist outside of Canada’s justice systems.
Indigenous nations and communities continue to exercise sovereignty by implementing traditional and customary law practices that have been passed down for millennia. These practices are rooted in the teachings of specific nations and communities. They are grounded in Indigenous principles that reflect distinctive values and traditions. Examples include:
- Inuit Qaujimajatuqangit: used by Tungasuuvingat Inuit, to consider and follow Inuit societal values when implementing law and justice processes.
- Enowkinwíxw: model used by the Syilx First Nation, a decision-making process that incorporates the four food chiefs and the Okanagan beings as a way to incorporate balance between men and women, and find alternative ways to deal with issues before the courts;
- Apiksiktatultimk and Nijkitekek: Mi’kmaq concepts of forgiveness and healing. These concepts were part of a customary law process involving an annual feast and ceremony on New Years Day called Wi’kupaltimk.
3.2.2 Restorative Justice programs operate within a colonial justice system
RJ programs that are funded by governments and administered by many Indigenous groups across Canada exist within the context of “a colonial imposed justice system” (Chartrand 2022), within the parameters of Canada’s Constitution, laws, and government structures. They incorporate Indigenous or traditional justice concepts but are implemented within a western CJS.
3.2.3 Compatibility of restorative Indigenous justice principles
Although RJ and Indigenous justice are not the same, restorative and Indigenous justice principles share many common goals. The Mi’kmaw teaching from Elder Albert Marshall on Etuaptmumk or “Two-Eyed Seeing” is illustrative of such compatibility. It refers to “learning to see from one eye with the strengths of Indigenous knowledge and ways of knowing, and from the other eye with the strengths of Western knowledge and ways of knowing... and learning to use both these eyes together, for the benefit of all.” That two-eyed seeing is possible in justice through the teachings of the Customary Law program.
3.3 Need for further education and awareness
It is important for lawyers, legal professionals, and others working in Canada’s criminal justice system to increase their knowledge, awareness, and education about Indigenous peoples. This includes:
- Understanding how to be an ally to Indigenous peoples;
- Understanding the differences among and within First Nations, Inuit, and Métis communities and cultures;
- Understanding why First Nations individuals leave their reserves and move to urban settings, and the implications of this;
- Understanding Indigenous value systems and customary law processes in order to comprehend the differences between restorative processes, compared to the retributive criminal justice process; and,
Recognizing the impacts of intergenerational trauma on Indigenous peoples, and applying a trauma-informed lens on restorative justice processes and Indigenous peoples that are involved in Canada’s criminal justice system.
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