Winning Essay in the Graduate Student Category
2002 James Boskey ADR
Writing Competition. The competition is Sponsored by the ABA Section of Dispute Resolution and the Association for Conflict Resolution.
In various parts of the world, Europeans have used criminal justice systems as a key colonial tool to dismantle and de-legitimise “the social institutions and political aspiration of indigenous people” (Cuneen 2000, 3). Certainly, Canada has been no different in its implementation of laws and policies that have resulted in eroding First Nations’ political, economic, social and cultural institutions and ways of life. The Canadian Department of Justice has attempted to redress some of these injustices by making reforms including the creation of the Aboriginal Justice Strategy. In this paper, I will argue that the Aboriginal Justice Strategy may attend to some of colonialism’s surface wounds, but it certainly does not address the systemic root problems nor offer lasting solutions. A successful Aboriginal Justice Strategy must go beyond participatory and indigenised justice processes. Rather, it must support healing and capacity building within First Nations’ communities as well as endeavour to decolonize and repair the relationship with the Canadian state. This paper will begin by contextualizing the Aboriginal Justice Strategy, followed by a brief description and critical evaluation, and will conclude with restorative recommendations for a renewed relationship with the Department of Justice and ultimately the Canadian state.
CONTEXTUALIZING ABORIGINAL JUSTICE
Placing Canada’s Aboriginal Justice Strategy within a political, cultural, and historical context enables us to fully understand its inadequacies in addressing the Department of Justice’s role in colonisation and its devastating impact on First Nations communities. In this section I will examine the role culture plays in human survival, the worldview clash between indigenous and western justice systems, the historical relationship the Canadian Department of Justice (DOJ) has had with First Nations peoples, and finally the impact colonial policies has had on Aboriginal peoples.
1) Culture, Worldviews, and Human Survival
On the surface, visible cultural differences can be seen in literature, food, arts, language and dress. Less visible and more significant are what is known as ‘deep culture’ which include concepts of justice, approaches to problem-solving, notions of logic, ideals in child rearing, gender roles, values, morality, and worldviews. Though invisible, worldviews can be seen as the foundation of healthy cultures. Political, economic and social institutions simultaneously reflect, reinforce, teach and legitimize a society’s worldview (Scott 1993, 45; Ross1996, 61).
Worldviews “fulfill the most general set of pre-understanding one has about reality” (Nudler 1990,177). In fact, Oscar Nudler argues that worldviews are rooted in the most fundamental human need for meaning and are critical for human survival (1990,187). He explains, “depriving people of their worlds and colonizing their minds for the sake of the expansion of one particular world…represents an extreme form of oppression, probably harder to face than pure economic exploitation” (Nudler 1990, 188). Consequently, the imposition of the western legal system on Aboriginal peoples has been more than introducing new institutions; it has threatened indigenous survival by eroding the very foundation of indigenous culture, values, and worldview (Alfred 1999, 37; Nudler 1990,187).
2) Aboriginal and Western Justice Systems: Worldview Clash and Domination
Justice systems are key institutions to teach and enforce a culture’s agreed upon values and mores. The following offers a brief overview of the principle differences and underlying worldviews between Aboriginal justice and the western legal system. Through this analysis it is possible to see how the Canadian legal system dominates Aboriginal justice mechanisms and even violates traditional indigenous principles (Alfred 1999, 42; Ross 1996, 269).
Aboriginal justice views crime as a misbehaviour and its resolution is found in teaching and healing the wrong-doer as well as restoring all relationships impacted by the offence back to health (Ross 1996, 5). While there is a diversity of Aboriginal nations within Canada there are some common themes that reflect a uniquely indigenous worldview. For example, an Aboriginal worldview does not include a hierarchy, as we are all seen as interdependent. As humans our role is to learn how the three orders (Earth, plants, and animals) interact with each other so we can accommodate ourselves to their existing relationships. The law of interconnectedness requires that a justice system investigate all factors that may have contributed to the misbehaviour. This would go back in time and include a wide circle of friends and families. “Disharmony within one individual is seen as everyone’s disharmony, for it infects all relationships which involve that person” (Ross 1996, 64). Justice focuses on the restoration to health of all relationships including individuals, families, community members, the Earth, and the Creator (Alfred 1999, 42).
A western approach sees crime as a violation against the state and the solution is found in punishment of the offender. The Canadian justice system reflects a western worldview that can be traced back to Christianity. Genesis quotes God as saying, “let us make in our image and likeness to rule over the fish in the sea, birds of heaven, the cattle, all wild animals on Earth, and all reptiles that crawl upon the Earth” (in Lee 1996, 5). This worldview translates into all of our institutions; however let us explore its manifestation in our Justice system. Like God, the judge is at the top of the hierarchy and doles out punishment when there is an offence. Lawyers are just underneath and rule over the rest of the people. Breaking the law is seen as an individual crime/evil. The focus is on the single act/sin and circumstances that led to the crime are never investigated. Both the Ten Commandments and the criminal code indicate what humans shall not do. Finally, ‘original sin’ can be seen as analogous to ‘general deterrence’ whereby we all pay for the sins of others (Lee 1996, 4).
Not only are western and Aboriginal worldviews and approaches to justice diametrically opposed, the western criminal justice system actually violates traditional Aboriginal law (Ross 1996, 12). The western adversarial approach of attack, blame, and deny is seen to move relationships further out of health, violating Aboriginal justice principles (Ross 1996, 68). Additionally, western law focuses on specific facts, rather than taking into account the various circumstances and relationships involved. Moreover, the western hierarchical system violates Aboriginal notions of equality, collectivism, and interdependence. For example, the reliance on professionals such as third-party strangers (judges and probation officers) who know nothing about the people involved and who are given the power to pronounce sentences is seen as exacerbating relational problems rather than solving them. Aboriginal law gives the responsibility for problem solving to the parties involved. Third parties such as elders participate only as teachers of traditional values (Ross 1996, 272). Given justice systems are closely linked to governance, values, and worldviews, the imposition of a fundamentally different system onto Aboriginal has created far-reaching implications for indigenous cultural survival.
3) Historical Relationship between the Department of Justice and First Nations’
Over and above the imposition of a foreign legal system on Aboriginal peoples, the Department of Justice has been instrumental in attempting to regulate and control every aspect of First Nations’ life in Canada. In fact, international standards would indicate that the DOJ can be seen as a perpetrator of gross human rights violations (Cunneen 1999, 124). Here I will give a brief summary of the historical relationship between the DOJ and First Nation’s peoples and some of the key laws and policies that have had the greatest impact.
In Canada, the relationship between European explorers/settlers and First Nations’ people has not always been unequal and oppressive. Nation-to-nation relations were enshrined in the Royal Proclamation of 1763 which “recognized the continuing rights of Aboriginal people to the lands they occupied and it recognized their sovreignty” (Hamilton 2001, 70). In fact, “the proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority” (INAC, 8). Consequently, most early treaties did not deal with the acquisition of land and were primarily treaties of peace and friendship. For example, the Two-Row Wampum Treaty between the British and the Iroquois Confederacy signified that the two nations would share land and resources but would each continue to govern their own affairs independent of each other (Hamilton 2001, 81).
As more and more Europeans migrated to North America, this partnership built on co-operation and equality gradually deteriorated. At the time of Confederation in 1867, the Canadian government declared Aboriginal peoples wards of the Federal government. It was at this point that the government accelerated its attempts to assimilate First Nations’ peoples into Canadian society and hence be relieved of the expenses associated with this fiduciary relationship. In 1876, the Canadian government developed the Indian Act as a tool to regulate various aspects of Native people’s lives and take away “the last vestiges of Aboriginal independence and authority” (Hamilton 2001, 86). The following outlines some of the laws and policies imposed on First Nations’ people in Canada that effectively undermined economic, political, cultural, and spiritual foundations in their families, communities, and nations (Llewellyn 2001, 3; Sinclair 1997, 6).
Ignoring the Royal Proclamation, settlers acquired more and more Native land leaving mostly small reserve land on rocky terrain for Aboriginal people (Hamilton 2001, 89). Additionally, several laws were passed that further effectively transformed self-sufficient First Nations’ communities into relations of dependency with the Canadian state (DIAND 1996,1.16). For example, First Nations living on reserves were prohibited from entering into contracts or selling anything they produced or manufactured (Sinclair 1997, 6). Moreover, any minerals or resources discovered in their communities could not be sold without government approval (Sinclair 1997, 6). Without a sufficient enough land base to be able to continue traditional livelihood, nor the legal ability to enter into contracts or partnerships, many Aboriginal peoples and communities have come to depend on charitable handouts, welfare, and make-work projects (DIAND 1996, 1.16; Hamilton 2001, 89; Ross 1996,47).
Any resistance to these laws and policies were made illegal and contributed to eroding indigenous political structures and institutions. For example, Indian conspiracy laws made it illegal for three or more Native people to get together to discuss grievances against the government. In fact, it was illegal for First Nations people to go to court to sue the Government of Canada without previous permission from the government, for non-Indians to go to court on behalf of an Indian person, or for Indians to take grievances directly to the Queen (Sinclair 1997, 6). As a further attempt to quash resistance and assimilate “Indians”, First Nations were not permitted to vote unless they gave up their Indian status through enfranchisement (Sinclair 1997, 8).
The suppression of resistance was accompanied by the imposition of a western political structure on First Nations’ communities, which resulted in the erosion of the core of indigenous political structures. In 1891, the Indian Advancement Act required those communities that were considered at “an advanced stage of development” to elect their own local leadership in accordance with rules and regulations created by the Canadian government” (Sinclair 1997, 10). Only Native men over twenty-one could vote or hold office. Moreover, these local governments had no real power; they were delegated the responsibilities to decide matters such as where to build houses and how to manage garbage. In fact, an Indian agent had to be present at meetings and could chair as well as set the agenda. Not surprisingly, traditional chiefs were forced to give up their leadership role otherwise they were guilty of an offence (Sinclair 1997, 9). In effect the Indian agents “ran their lives and told the Indians what they could and could not do” (Hamilton 2001, 101).
Some laws and policies were directed at the heart of First Nations’ culture and spirituality. For example, gatherings such as potlatches and sundances were outlawed, while Christmas celebrations were encouraged (Sinclair 1997, 10; Hamilton 2001, 87). It was illegal to practice traditional healing or even to possess medicine bundles (Ross 1996, 47). When attempts to disrupt economic, political and spiritual infrastructures did not sufficiently assimilate “Indians”, children became the targets.
Residential school legislation (in effect and implemented for over one hundred years) forced over 100,000 First Nations children out of their homes and communities into foreign educational systems (Sinclair 1997, 5; Llewellyn 2001, 3). The ultimate aim was to assimilate once and for all the indigenous people of Canada. In 1895, the Annual report of the Department of Indian Affairs revealed its objectives:
If it were possible to gather in all the Indian children and retain them for a certain period, there would be produced a generation of English-speaking Indians, accustomed to the ways of civilized life, which might then be the dominant body among themselves, capable of holding its own with its white neighbours; and thus would be brought about rapidly decreasing expenditure until the same should forever cease, and the Indian problem would have been solved (in Llewellyn 2001, 5).
The nature of the schools fostered various forms of abuse: physical, sexual, spiritual, cultural, and psychological. Nuns and priests were instructed to train the “Indian” out of the children and consequently cut their hair and changed their clothing into uniforms upon arrival. Punishments were arbitrary and an everyday reality, especially for those students who dared speak in their Native languages (Llewellyn 2001, 5). Chronic underfunding meant that many children were hungry, malnourished, and even forced into labour to support the costs of running the schools (Llewellyn 2001, 6). Many children upon return to their families could no longer relate to their parents. The disruption in family unity and child rearing practices has meant that survivors are often unable to care adequately for their children, and the cycle of abuse and neglect continues (Hamilton 2001, 102).
While, the Indian Act was amended in 1951 and some laws were repealed in 1927, policies of assimilation persisted. For example, financial incentives such as the Native housing program in the 1950’s encouraged First Nations families to migrate from reserves to urban centres in exchange for $10,000 for the purchase of a house (Sinclair 1997, 5). Similarly, in 1969 the federal government issued the White Paper, outlining Aboriginal policy to gradually move away from special status to one where First Nations are no different from other Canadians (Hamilton 2001, 100). These assimilation policies were “a major affront to First Nations identity” (Hamilton 2001, 99). Throughout Canada, Aboriginal people unanimously rejected the White Paper and began to collectively renew their resistance and began linking with other indigenous peoples worldwide. Indeed, they have been able to win some important battles including the 1982 Constitution Act which recognized “existing Aboriginal and treaty rights” (DIAND 1996, 1.16.2). But first let us turn to the impact colonial policies have had on First Nation individuals, families, communities, and nations.
4) Impact of Colonial Policies on First Nations’ Peoples
The Department of Justice’s role in the political and cultural domination of First Nations’ peoples has had far-reaching and devastating implications. “The trauma caused by colonial policies (is) still clearly impacting today” (Cuneen 2001, 84). The ramifications of these policies has not only eroded and changed much of Aboriginal culture, economic base, social structures, and political organizations, but has additionally resulted in an extreme form of cultural oppression resulting in intergenerational trauma (Martin-Hill 2002).
One of the most harmful consequences of colonialism is the internalization of the dominant worldview and values (Alfred 1999, 142). For example, Taiaiake Alfred notes “more and more…we find our leaders looking, sounding, and behaving just like mainstream politicians” (1999, xv). They embrace and practice patriarchy, power as dominance, hierarchies, and even at times notions of indigenous inferiority. Alfred claims this internalization is the root cause of indigenous suffering and factionalism in communities. He explains, Native American community life today is framed by two value systems that are fundamentally opposed. One still rooted in traditional teachings, structures, social and cultural relations; the other imposed by the colonial state, structures, and politics. This disunity is the fundamental cause of factionalism in Native communities, and it contributes significantly to the alienation that plagues them (1999, 11).
As mentioned earlier, the imposition of one worldview onto another is the most extreme form of human oppression as it eradicates the fundamental human need for meaning and identity (Nudler 1990, 187). It therefore follows that in the case of Canadian colonization, First Nations’ separation from indigenous heritage creates alienation, loss of identity and sense of self (Alfred 1999, 8).
This profound loss of meaning and identity manifests in self-destructive behaviour and pervasive social dysfunctions (Alfred 1999, xv). Suicide rates are six to eight times the national average; domestic violence and sexual abuse plagues communities; unemployment rates on reserves average eighty to ninety percent; and incarceration rates are twelve to seventy percent the national average (Hamilton 2001, 111; Sinclair 1997, 9). Intergenerational trauma has left entire families and communities caught in a vicious cycle of abuse. Rupert Ross explains,
“the plague of sexual (and other) abuse that afflicts so many aboriginal communities is not a “natural” event…it is an almost inevitable consequence of historically labelling everything Aboriginal as pagan, of declaring at every step in every way that every aspect of traditional life was either worth less than its European equivalent-or just plain worthless” (1997, 44).
THE ABORIGINAL JUSTICE STRATEGY
In 1988, Aboriginal leader, J.J Harper, was killed in a confrontation with a police constable. During that same year a trial involving suspects of the 1971 abduction and murder of Helen Osbourne (a young Cree woman) took place. Many people believed both cases reflected discrimination in the justice system. They pointed out that Harper’s assailant was a police constable and Osbourne’s case was never taken seriously as it took seventeen years to come to trial (Hamilton 2001, 38). These tragic events took place at a time when some judges and Native court workers were concerned by the sudden dramatic increase in incarceration rates of Aboriginal people and were advocating a new way of doing justice. They felt that justice needed to be administered in a way that was more culturally appropriate and meaningful to First Nations communities (Hamilton 2001, 38).
The Department of Justice developed a two-phase plan to look into these concerns: the Aboriginal Justice Initiative followed by the Aboriginal Justice Strategy (AJS). From 1991 to 1996, the Aboriginal Justice Initiative primarily developed pilot projects that were considered more participatory and culturally appropriate to First Nations communities such as family group conferencing and sentencing circles (Giff 2000, 16). Justice models endeavoured to draw on traditional Aboriginal teachings where the focus was on teaching and healing the offender and all the relationships impacted by the crime; rather than punishment (Ross 1996, 5). Moreover community participation and circle processes were preferred as they reflect a more egalitarian and collective worldview than the hierarchical and highly individualized mainstream court system. This first phase was considered fairly successful and was followed by a five-year Aboriginal Justice Strategy (AJS) acting as an arm of the Department of Justice. After a transitional year, AJS recently had renewed funding for another five years. The national office runs out of Ottawa and two regional offices branches are located in Vancouver and Saskatoon (Giff 2001, 32).
Aboriginal Justice programs have multiplied considerably over the years; from twenty-six programs in 1996 to sixty-two this year. AJS’s overall objectives include: reduced reliance on the formal justice system; community involvement and control; increase in offender accountability; making amends; healing; increase in victim satisfaction; community safety; and crime prevention (Giff 2001, 18).
The models most commonly adopted in First Nations’ communities are diversion, community sentencing, mediation, and tribal courts. Diversion falls under Alternative Measures (established under provision of the Young Offenders Act or the Criminal Code) and is by far the most commonly used, making up approximately seventy percent of programs implemented. Offenders are removed from the mainstream court systems into community processes that are culturally appropriate such as sweats, community work, and wilderness camps. Community sentencing generally involves either elder advisory panels, sentencing initiatives, community circles, and other peacemaking processes that then advise the courts. Mediation is used for non-criminal disputes and consists of the intervention of an impartial third part that facilitates resolution. Finally, tribal courts have adapted the western court system to a more informal and supportive process. A judge comes into a community and holds court in a community centre or church basement and gives a sentence based on the advice of the justice committee. During the probation the judge may visit once every four months and at the final visit the judge and elders honour the offender as a symbolic gesture to reintegrate him/her into the community (Giff 2001, 30).
Delivery options include family group conferencing, victim-offender mediation, sentencing circles, healing circles, court assistance, and post release. Dispositions used include counselling, formal apology, restitution, cultural activities (such as a sweat), drug and alcohol counselling, volunteering orders, essay and report writing for self reflection. The goal is to address the root causes of anti-social behaviours through counselling rather than punishment. Strategies include a focus on enhancing the offender’s relationships, assisting the offender to become aware about how the event affected others, and the facilitation of the establishment of paths for making amends (Giff 2001, 16).
Some of the successes the DOJ ascribes to the AJS are the metamorphosis of clients that have enabled relationships and lifestyles to transform. Moreover, these community justice programs have facilitated the beginning of a healing journey for all and claim to be a crucial community building activity (Giff 2001, 70).
CRITICAL ANALYSIS OF THE ABORIGINAL JUSTICE STRATEGY
A commission looking into the way aboriginal people are treated by the justice system in Saskatchewan takes its first steps this week with the start of public hearings. Prompted by the unexplained deaths of two (aboriginal) men found frozen on the outskirts of Saskatoon, the three-year commission is to look at policing, corrections and other aspects of the justice system (Canadian Press, April 14th 2002).
Evidently, despite the Aboriginal Justice Strategy’s best efforts to treat surface wounds, police brutality against First Nations’ and internal dysfunctions within Aboriginal communities still persist. AJS’ objectives include healing and community empowerment, so what has gone wrong? Here, I will put forward the proposition that the AJS does not revitalise traditional indigenous culture or justice practices, but rather offers another more subtle extension of Canada’s assimilation policies.
The Aboriginal Justice Strategy focuses primarily on indigenising the enforcement of Canadian law in First Nations’ communities. Despite its espoused objectives it does not address the root cause of social dysfunctions and crime on reserves. To do so would entail addressing the “deep pool of internal suffering…(and) the underlying cause of that suffering: alienation – and separation from indigenous heritage” directly resulting from the unjust structural relationship between Aboriginal people and the Canadian state (Alfred 1999, xv). AJS’ solutions are seriously inadequate in that they rely on “grossly simplistic notions of indigenous culture and provide little in the transfer of power from the formal criminal justice system to indigenous communities” (Cuneen 2000, 10). Sadly, AJS may inadvertently perpetuate what it aims to cure: social dysfunctions and community disempowerment. Given the role of culture in human survival and the essential human need for meaning, it is critical that institutions reflect a given culture’s worldview. Governing institutions such as justice systems in particular need to reflect the values and mores a society wishes to espouse. Since the root of First Nations suffering is loss of meaning and alienation from their cultural heritage it is crucial that an appropriate justice system reflect and reinforce indigenous worldviews fully. Canada’s Aboriginal Justice Strategy is a superficial indigenisation of the Canadian legal system and does not reflect the most significant cultural aspects of indigenous justice (Alfred 1999, 62; Cuneen 2000, 10).
Despite the fact that Canadian law is steeped in a western worldview, it remains the basis for Aboriginal justice programs and hence the foundation for dictating acceptable community values and mores. First Nations’ communities are certainly more involved in the process of administering Canadian law but they still have no say in the formulation of the law, the extent of their jurisdiction, nor final decisions regarding sentences. Taiaiake Alfred explains,
When terminology, costume, and protocol are all that change, while unjust power relationships and colonized attitudes remain untouched, such ‘reform’ becomes nothing more than a politically correct smokescreen obscuring the fact that no real progress is being made towards traditionalist goals (1999, 27)
AJS is a perfect example of such a smokescreen. While giving a facade of Native empowerment and cultural sensitivity, AJS in fact does the exact opposite. AJS indigenises the surface process while leaving the foundation and content western. For example Aboriginal justice utilises circle processes, sweats, smudging, prayer, and elders; however indigenous notions of power, governance, and political entities are ignored (Alfred 1999, xiv).
Moreover, family group conferencing, sentencing circles, and victim-offender mediation include local community members; however, they do not challenge the fundamental colonial relationship with the DOJ. Likewise tribal courts and diversion may be more culturally sensitive and supportive to individual offenders, but they do not address the inherent power imbalance of a “foreign” judge making final decisions (Giff 2001, 56).
Emma Laroque points out that even surface protocols are mostly inaccurate recreations of indigenous traditions. In examining the assumptions about aboriginal tradition, upon which Aboriginal-controlled justice systems are based, she notes that much of what is considered tradition are merely fragments of Native and Western traditions mixed together. For instance, AJS’s focus on healing aboriginal sex offenders and emphasis on the importance of collectivity actually counters historical and anthropological accounts. Traditionally, there was an absolute intolerance of sexual offences. Historical accounts indicate that sexual offences were rare; however in the event of a rape, the perpetrator was banished or murdered. Individual safety was never sacrificed for the current discourse on community collectivity. In fact, traditional notions of collectivity included community and individual safety as paramount (Laroque1997, 80).
Finally, AJS is further eroding and changing the traditional role of elders. For example, most processes use elders as advisors for sentencing. Consequently their role is being changed from teachers and healers to judges. Given that many elders are survivors of abuse who have yet to fully heal from their trauma, putting them in places of judgement not only radically changes their traditional roles, but also has the unfortunate effect of continuing the legacy of denial and internalization of sexist attitudes (Avison 1994, 237).
By indigenising surface protocols (albeit inaccurately), the AJS co-opts First Nations leaders and community members into believing they are contributing to significant cultural renewal and self-determination. However, in administering Canadian law they become ‘agency Indians’ for the Canadian state. This in turns fosters community disunity by pitting traditionalists against ‘co-opted Indians’ (Alfred 1999, 70). Moreover, superficial indigenisation ultimately lends itself to confusion, loss of meaning and identity which in turn breeds social dysfunctions, crime, and powerlessness (Alfred 1999, xv; Nudler 1990, 187).
“The indigenisation of the criminal justice system is (clearly) not the same as self-determination” (Cuneen 2000, 10). In fact community-based sentencing and correctional alternatives for Aboriginal offenders can be seen as more palatable ways to administer justice rather than fundamentally changing the justice system. Far from empowerment, community involvement may represent further extensions of state power in indigenous communities (Cuneen 2000, 10). If the outcome of Aboriginal justice is the further integration of First Nations peoples into the Canadian legal system, then it is neither politically transformative, nor does it offer a radical alternative to previous assimilation practices (Cuneen 2000, 10).
Given that the Department of Justice has been instrumental in carrying out colonial policies that have resulted in the gross violations of human rights (and consequently caused surface wounds such as crime and social dysfunctions), the Aboriginal Justice Strategy must go beyond participatory and indigenised processes. Rather it must endeavour to address the root causes of crime: alienation and seperation from indigenous heritage. In this way the AJS must simultaneously heal and revitalise the core of First Nations’ political, economic, social, and cultural structures and relations; as well as decolonize and repair the relationship with the Department of Justice and ultimately the Canadian state. A full exploration of the processes needed to implement these recommendations is beyond the scope of this paper; however I will briefly touch on some key issues.
Firstly, First Nations’ communities need to be given the space and time to heal from the trauma of colonial policies as well as revitalise and rebuild the core of their culture and all of their institutions (Martin-Hill 2002). This in itself is a monumental task as it involves transforming and healing violence against women and children, abuse of power by local leadership, addictions, learned powerlessness, and collective post traumatic stress disorder (Martin-Hill 2002). Given that the root of indigenous suffering is due to the lack of meaning and identity, revitalising and restoring values and worldviews based on traditions as well as contemporary realities will be paramount. For example, traditional roles of women and elders need to be revitalised and re-examined. In turn, this worldview can inform the creation of political, economic, cultural, spiritual, and educational structures (Alfred 1999, xviii).
Secondly, the Canadian state must stop assimilation practices and immediately begin to honour its agreements. For example, the Royal Proclamation, the Canadian Constitution, and the Royal Commission on Aboriginal Peoples all commit to acknowledging and acting upon the inherent right of Aboriginal peoples to self-government (DIAND 1996, 1.16.2; Hamilton 2001, 80). Turning to international standards, the van Boven principles could be applied in order give guidance on how to repair and decolonise the relationship between Aboriginal people and the Department of Justice. These principles lay out restorative measures such as acknowledgement and apology, restitution, rehabilitation, compensation and reassurance against future acts (Cuneen 2001, 98).
Acknowledgement and apology would include the Department of Justice recognizing its colonial role and its devastating impact on First Nations’ peoples. Public apologies and commemorations could help transform national consciousness from one of relative ignorance to truth telling. Measures of restitution and rehabilitation include supporting First Nations’ revitalisation and healing initiatives that include political renewal (not only simplistic notions of cultural protocols). Referring to international obligations, (Article 8 of the Universal Declaration on Human Rights, Section 3 of the International Convenant on civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment), monetary compensation must be allocated to First Nations as they have been subjected to serious and prolonged human rights violations. Finally, guarantees against repetition must be an important part of the restorative process. Healing for all parties can only begin when there is a commitment to stop colonial and assimilation policies and strategies. In this way, not only can victims begin to heal, but the relationship between the Department of Justice (and the Canadian state) can also heal.
By only touching on recommendations briefly, I by no means intend to infer that it will be an easy process. Rebuilding nations after gross violations of human rights is never easy and requires a great deal of effort, care, and commitment by all involved. Particular care will need to be given in the transfer of jurisdiction to First Nations’ communities that ensures a level of safety for women and children. Similarly, a vigorous public education campaign aimed for non-indigenous Canadians should address root causes of misunderstandings, racism, and ignorance.
Throughout this paper I have attempted to stress the importance worldviews serve in human survival. By emphasizing this particular “lens”, I hoped to demonstrate that imposed laws and policies on Aboriginal peoples has been far more than culturally insensitive, it has resulted in the gross violation of human rights. Consequently, the Department of Justice’s efforts to indigenise justice processes without revitalising political structures and content is not only inadequate but continues the legacy of assimilation. It follows that crime and other social dysfunctions will persist if colonial policies and attitudes remain unchanged. In this light it is possible to shift the attention from individual Aboriginal offenders to the Department of Justice as a perpetrator of gross human rights violations. An effective Aboriginal Justice Strategy must be two-pronged. First resurrecting the foundations of aboriginal justice processes requires healing as well as revitalising and restoring First Nations values, worldviews, and institutions. Secondly, the Department of Justice must become accountable and begin a genuine reparations and reconciliation process. In this way First Nations and the Canadian state could renew their relationship based on justice, peace, and mutual respect.
Alfred, Taiaiake. 1999. Peace, Power, Righteousness. And Indigenous Manifesto. Don Mills: Oxford University Press.
Avison, Don. 1994. Clearing Space: Diversion Projects, Sentencing Circles, and Restorative Justice. Paper presented to continuing Poundmaker and Riel’s Quest: conference on Aboriginal Peoples and Justice, Saskatoon.
Canadian Press. 2002. Aboriginal Justice Commission to begin hearings (article on-line) (Saskatoon, globe and Mail, 14 April 2002, accessed 16 April 2002); available from www.globeandmail; internet.
Cuneen, Chris, 1999. Criminology, Genocide and the Forced Removal of Indigenous Children from their families. The Australian and New Zealand Journal of Criminology (Winter): 3-54.
Cuneen, Chris. 2000. Restorative Justice and the Politics of Decolonisation. Paper presented to the Fourth International Conference on Restorative Justice for Juveniles, Institute of Criminology, University of Tubingen, Germany, 1-4 October 2000.
Cuneen, Chris. 2001. Reparations and Restorative Justice: Responding to the Gross Violation of Human Rights. In Restorative Justice and Civil Society, edited by Heather Strang and John Braithwaite. Cambridge: Cambridge University Press.
Giff, Naomi. 2000. The Aboriginal Justice Strategy: Trends in Program Organization and Activity. Ottawa: Department of Justice.
Hamilton, A.C. 2001. A Feather Not a Gavel. Working Towards Aboriginal Justice. Winnipeg: Great Plains Publications.
Indian and Northern Affairs Canada. Looking Forward, Looking Back (report on-line) (Ottawa: government of Canada, accessed 10 April 2002); available at www.ainc-inac.gc.ca; internet.
Department of Indian and Northern Development. 1996. Report on the royal Commission on Aboriginal Peoples. Ottawa: Minister of Supply Services Canada.
LaPrarie, Carol. January 1998. The ‘new’ justice:some implications for aboriginal communities. Canadian Journal of Criminaology. Vol.4 (1)1998.
Laroque, Emma. 1997. Re-examining Culturally Appropriate Models in Criminal Justice Applications. In Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference, Vancouver: UBC Press.
Lee, Gloria. 1996. Defining Traditional Healing (article on-line) (University of Saskatchewan, Native Studies Research paper, accessed 5 March 2002); available at www.usask.ca/nativelaw/jah_lee.html; internet.
Llewellyn, Jennifer. 2002. Dealing with the Legacy of Native Residential School abuse in Canada – Litigation, ADR and Restorative Justice.
Martin-Hill, Dawn. 2002. Reconciliation and First Nations Government: Powers. A Just and Lasting Reconciliation first Nations Government Conference, lecture, Hyatt Regency Hotel, Vancouver, 19 March 2002.
Ministry of the Attorney General. October 1999. Crown Counsel Policy Manual: Alternative Measures for Adult Offenders. Victoria, BC
Nudler, Oscar. 1990. On Conflicts and Metaphors: Toward an Extended Rationality. In Conflict Human Needs Theory edited by John Burton, Basingstoke: MacMillan.
Ross, Rupert. 1996. Returning to the Teachings. Exploring Aboriginal Justice. Toronto: Penguin Books Canada.
Scott, Mary. 1993. Symptoms of cultural Pathologies: A hypothesis. In Conflict Theory and Practice edited by J. Sandole and H. van eder Merwe, NY: Manchester Press.
Sinclair, Murray. 1997. The Historical Relationship Between the Canadian Justice System and Aboriginal People. Presentation at Aylmer, Quebec to the Aboriginal Justice Learning Network.
Tauri, Juan Marcellus. Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand (article on-line) (University of Saskatchewan, Native Studies, accessed 10 March 2002); available at www.usask.ca/nativelaw/jah_tauri.html; internet.
This past weekend I had the pleasure of presenting on one of my favourite topics right now – “What To Do When Shit Hits The Fan” – at the fantastic...By Jason Dykstra