User:Mackamarine/Indigenous Law/Legal Traditions

Indigenous Legal Traditions are a defining feature of the many diverse groups of Indigenous peoples that inhabit what is now known as Canada. Canadian Aboriginal Law is a term that pertains to the laws created by the federal government to handle Aboriginal peoples, and is therefore separate from Indigenous Legal Traditions. Since the arrival of settlers in Canada, it has been apparent that there are distinct and prominent differences between the fundamental life philosophies held by various Indigenous groups and what has been labeled as the European-Canadian society. Indigenous Legal Traditions have a rich and diverse history, however, due to historic and continued colonization, they are often left unacknowledged within the Canadian Legal System. However, resurgence of Indigneous legal traditions has increased throughout the past three decades.

History

A significant aspect of Indigenous laws is their ability to evolve to meet the shifting needs of communities. The various groups of Indigneous peoples within what is now known as Canada had vast social and political structures that worked to sustain every aspect included within their environment for thousands of years (need to fix citation). However, it is significant to note that there is not one single Indigenous legal order, as there are vast differences between groups, such as linguistic, genealogical and political, indicating the importance of steering away from viewing their traditions and perspectives as homogeneous. Indigenous laws were created and used as a method to govern within and outside of clans, ensuring that relationships were maintained over time and spaces. Treaties between Indigenous groups existed before European contact. These treaties were used as a method to establish peace and relationships, define territorial areas and share resources among nations. Communities used these laws within all aspects of their lives, including hunting, in which hunting grounds and regulations were defined.

Many groups employed methods such as counseling, shaming and banishment to resolve wrongdoings, with consultation being at the heart of all aforementioned methods. Justice was sought through consultative methods in which discussions and negotiations were held. This was done between individuals, as well as groups, as a means of reaching mutually agreed upon solutions to challenges, conflicts and/or disputes. Historically, Elders had, and continue to play, an influential role in jurisprudence within and between communities, oftentimes communicating with and taking into consideration both of the affected sides.

Indigenous legal traditions do not only encompass issues pertaining to the individual or group, but also have significance in environmental governance in Canada. The recognition of this component is necessary in the resurgence of Indigenous legal traditions. Additionally, in the consideration of the various understandings and practices of laws created by various Indigenous nations, one must also acknowledge the traditional legal practices of the Métis peoples. Métis justice reflects aspects of both Indigenous and British common law practices. A significant feature within is the acknowledgement and consideration of victims and those that are greatly impacted by wrongdoings, through the voicing of their wishes, which are then used to assess an overall remedy to the dispute and/or challenge faced.

Impact of Colonialism

Indigenous laws were severely impacted through the implementation of the Gradual Enfranchisement Act of 1869 and the Indian Act of 1876. These acts led to polices, systems and structures, such as the Residential School System. Ultimately, they all worked to assimilate Indigenous peoples into the dominant European settler society, implementing drastically different systems of law, while outlawing Indigenous traditions, culture, languages and laws. Systems and laws in which Indigenous peoples had developed and evolved for thousands of years prior to European control were replaced by foregign laws and systems of governance. These measures were headed by the federal government as a means to displace Inigenous peoples. The North West Mounted Police (NWMP), now known as the Royal Canaidan Mounted Police (RCMP), were created by colonial settler organizations to aid in the govenment's implementation of assimilative policies. Today, the RCMP follow guidelines and practices that were originally created as a part of the colonial legislature. The differing perspectives that stem from this often lead to a lack of communication, trust, and collaboration between the police and Indigenous families, as well as communities.

Lack of Acknowledgement

Indigenous law and legal traditions are a vital aspect of Indigenous cultures, as they work as a means to uphold the political autonomy of various Indigenous groups as a nation. These legal traditions work as a way for Indigenous peoples to maintain vital aspects of their lives, such as the relations that they hold with the world, communities and other individuals. However through colonialism and its continued legacy, they are often deemed invalid by the Canadian government and law. Due to this, there is a significant lack of acknowledgement within the Canadian justice system in regard to the use of Indigenous law. Historically, as well as recently, oral traditions such as songs and stories have not been given the same amount of weight or consideration by the Canadian government as those created by colonial systems. This vastly contrasts the initial acknowledgement of Indigenous laws and practices, as exemplified through early interactions and agreements, such as those seen within the fur trade and marriages, along with treaties and alliances, made between European traders/colonizers and Indigenous peoples. Previous relationships that acknowledged their significance were reframed. This worked to destabilise Indingeous peoples, and thus their laws, rather than affirm them, which continued through the Canadian States denial of the existence and/or significance of Indigenous legal orders.

Resurgence

Restorative justice is a method that can aid in the resurgence of Indigneous legal traditions. Encompassed within this is reconciliation, which will not be achieved if only done on an individual level, as it requires work to be done between the Canadian government and the entire population of Indigenous peoples as well. To achieve this, recognition of the various gross violations of human rights that were carried out throughout colonial laws and governance, paired with a shift away from the continued control and impacts that colonial rule has within the nation, must be successfully attained. The collaboration of Indigenous models of law and governance through consultations with communities is noted to be a significant factor in strengthening resurgence. It is important to note that restorative justice is not a system that will work within every indigenous Community as it is not a universally accepted means of ensuring justice. Additionally, it must also be considered that implementation of restorative justice systems may not dissolve the current difficulties experienced by Indigenous peoples within the justice system, namely the effects of cultural and communicative differences seen throughout.

Truth and Reconciliation Committee (TRC)

It is stipulated within the Truth and Reconciliation Committee (TRC) that an acknowledgment of the existence and exercise of Indigenous legal traditions, notably through Aboriginal title and governance rights, are to be recognized in all aspects of Canadian courts. This is specifically outlined by call 42;

TRC Walk of Reconciliation Downtown Edmonton 2014

We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012.

Respectful engagement through balance between Canadian and Indigenous laws is another component needed to sustain reconciliation and the resurgence of Indigenous legal traditions. (page 725, 7) From a scholarly perspective, through the acknowledgment and implementation of Indigenous legal traditions Canadian institutions could become strengthened. This would allow for and promote further accountability, along with working to ensure that the human rights of Indigenous peoples are acknowledged.

The hearing and consideration of indigenous oral histories within court proceedings is a move towards the resurgence of Indigenous legal traditions. This has been seen in many cases, with an increase in their prevalence in the past few decades. The first case in which Indigenous oral traditions were accepted as evidence was in the Delgamuukw v. British Columbia trial, which occurred in 1997. Indigneous legal traditions are constitutionally recognized as a part of Canadian law, however there is still much work to be done for these traditions to be recognized as such throughout the entire nation. Over the past decade there has been a considerable amount of effort made to establish greater accessibility and the understanding of Indigenous law through the incorporation of aspects of Indigenous legal traditions within law schools in Canada. In addition, there has been an increase in the collaboration of researchers from a wide variety of fields with Indigneous communities.

Marshall Inquiry

Another vital move towards resurgence has been through the considerations put forward in the Marshall inquiry. Although these considerations were made for the Mi’kmaq community within Nova Scotia, the following implements would be beneficial additions within every Indigenous community in Canada;

1. A recommendation that a specialized criminal court be developed which is sensitive to the unique culture, history and values of Aboriginal Nova Scotians;
2. A recommendation for the adoption of Aboriginal legal norms into the Canadian civil and criminal legal systems where relevant;
3. A recommendation that Mi’kmaq interpreters be hired as court workers in consultation with Aboriginal communities;
4. A recommendation that Mi’kmaq court workers be hired throughout the province in consultation with Aboriginal communities; and
5. A recommendation that, where applicable, the RCMP take immediate steps to recruit and hire Aboriginal constables.

Mohawk Council of Akwesasne (MCA)

The Mohawk Council of Akwesasne (MCA) is a community government headed by 4 Chiefs, 12 District Chiefs and one Grand Chief, each of which is elected by community members. The MCA has responsibility over the Ahkwesahsne Mohawk board of Education, Akwesasne Mohawk Police Service, and the Departments of Central Resource Service, Community and Social Services, Tehotiiennawakon, Health, Housing, Justice and Technical Services. This council is an example of Indigenous self government and the resurgence of Indigenous legal traditions through electoral processes.

Tsuu T'ina Peacemakers Courts

Created in 1999, the Tsuu T'ina Peacemakers Court has brought healing and restoration to the members and community of the Tsuu T'ina Nation reserve in Alberta through the promotion of Indigenous legal traditions. The court employs members of the Canadian justice system that are of Indigenous descent. Community involvement is heightened by the court through the consultation processes that are used as a method to select respected community members and appoint them as peacemakers. Peacemaking processes take place in a circle that incorporates not only the victim and offender, but their families, helpers, resource personnel and Elders as well. The physical space created by the court supports Indigenous control over justice through the incorporation of culturally appropriate features. It should be noted that offences that involve homicide and sexual assault are exempt from partaking in the peacemaking process. The Tsuu T'ina Peacemakers Court provides a model for other Indigenous communities to replicate as a means of fostering Indigenous law and legal traditions.