DRAFT: 31 January 1993
Prospects for Aboriginal Justice in Canada1
Simon Fraser University
Notwithstanding the results of Canada's 1992 national referendum -- where "the aboriginal package" went down to defeat, along with the rest of the constitutional proposals, among both aboriginal and non-aboriginal voters -- prospects for dramatic changes to the look of aboriginal-governmental relations in Canada are still alive and well. My interests in this paper are to examine what those relations have been, as well as factors which may influence and/or should be considered in future relations. Particular attention will then be paid to possible futures in the realm of aboriginal justice.
Though calls for changes in the realms of both aboriginal-governmental relations and aboriginal justice come from many quarters, just what these changes might entail, and how they will dovetail with the dominant Euro-Canadian governmental and justice systems, are still a matter of some discussion and debate. The current paper begins with the assertion that choices among future policy alternatives would benefit from consideration of past relations between Canada's indigenous peoples and the colonial and federal governments. Indeed, it is guided by the belief that any proposals which do not consider the past in their formulation and implementation are doomed to repeat it. Accordingly, the first half of this paper reviews some of the history of aboriginal-governmental relations in Canada, while the second half focusses specifically on issues of aboriginal justice.
A Historical Preamble
Aboriginal Peoples and Canadian History
There is an incredible irony concerning Canada's indigenous peoples. On the one hand, there is considerable oral history evidence from aboriginal peoples, reaffirmed by archaeological evidence, that native peoples have indeed populated this continent since "time immemorial" -- long enough for aboriginal ancestors to have witnessed even the ice ages that affected the North American continent between 10,000 and 40,000 years ago (e.g., see McMillan, 1988). On the other hand, the European (and academic) bias toward paper documentation, coupled with the fact that Aboriginal cultures have been oral and/or used other media (e.g., wampum belts) to transmit information from generation to generation, have left aboriginal peoples among those peoples who, from the European perspective, have no history (cf., Wolf, 1982). As Stanley (1983) stated:
"Because the Indian had no written records when the first white man reached this continent, he was dismissed by the white man as having no past." (p.1)
Stanley's observation is itself ahistorical, however, since European histories of North America, and depictions of aboriginals within it, have themselves changed considerably as the relationship between whites and aboriginals has varied over the last 500 years. In that sense, "North American history", and "aboriginal history" within it, are better seen, as Fisher & Coates (1988) have argued, as social constructions. In this regard, they approvingly cite another historian (K.R. Howe) who
"...pointed out that, because history is what we choose to see, 'the past has no independent existence'. Indeed, it might well be argued that history has some of the same functions in western cultures as mythology does in Indian cultures: it validates the past in terms that are meaningful for the present." (p.3)
The changing depictions of aboriginal peoples who do appear in Canadian histories seem to offer a classic example of those dominating the present constructing the past in the service of their own interests.
Various authors have documented the change in European views of aboriginal peoples in formal histories written during the post-contact years2. When the indigenous peoples were of use to Europeans -- for survival in what to Europeans was an unforgiving "new world", as military allies, and during the years that Europeans and aboriginals engaged in the fur trade -- the dominant image was of the "noble savage" (Fisher, 1992), and histories of the time both included, and were respectful of, the natives (Trigger, 1988).
By the early 1800s, however, and particularly after the War of 1812, survival per se was no longer an issue, external military threats were unlikely, and the fur trader voyageurs gave way to waves of immigrant settlers seeking an agricultural land base. But as conflict over land use arose, the images of Indians began to change. Where once the Indians had been most helpful and useful, now they were an obstacle to European visions of progress. The "noble savage" was now merely "savage"; the same Indians who were once seen as knowledgeable, brave, and loyal, were now perceived as ignorant, cruel, treacherous, blood-thirsty, dirty, and immoral (Fisher, 1992; Francis, 1992; Trigger, 1988; Walker, 1983). Certainly this helped to justify colonial policies which emerged at the time, most of which focussed on getting Indians out of the way, so that the interests of "civilization and progress" might be served.
In the post-Confederation period, aboriginal peoples have yet to be recognized as one of Canada's founding nations (e.g., see Harper, 1991, on this point), thereby making them "irrelevant" for inclusion in more recent "mainstream" national histories, from which they have been and continue to be conspicuously absent (e.g., see Walker, 1983). To the extent that "mainstream" histories are justifications of the present, any significant representation of aboriginal peoples in the major governmental structures of our time would require a story to show the "inevitability" and "just-ness" of such a presence. The corollary is that so, too must their absence be accounted for, and most of the "standard" Canadian histories (e.g., Creighton, 1974; Woodcock, 1990) do so by depicting natives as savages who were too ignorant even to be grateful for the Europeans' "gift" of "civilization", as stage props for what was seen (by Europeans) as a primarily European drama in the "New World", or by ignoring them entirely (cf., Walker, 1983).
But if history can be revised once, then it must be open to further reconsideration, and the last two decades have seen considerable transition in how aboriginals have been perceived in historical context. Part of this is due to aboriginals themselves, who must be acknowledged for the way they have continued asserting their past, even in the face of considerable suppression for more than a century. Contributions have also been made in the form of an unprecedented amount of primary research in the last two decades in the realm of native history (e.g., see Fisher & Coates, 1988; Walker, 1983). Perhaps not surprisingly, the contemporary 'rediscovery' of native peoples and their contributions to Canadian history has been associated with reconsideration of Canadian government Indian policies.
Traditions in Canadian Indian Policy
Tennant (1985) and Dyck (1991) are among those to have described Canadian Indian policy over most of the last 125 or more years as clearly and consistently assimilationist in its objectives. Tobias (1983) summarized by saying "Protection, civilization, and assimilation have always been the goals of Canada's Indian policy." (p.39). Protection was required because of the belief that Indians were but children, who would otherwise be vulnerable to Europeans' exploitation. Civilization was the Holy Grail that the new settlers had to offer. Though it might take some time, the Indians could be educated, for their own alleged benefit, to a new religion (Christianity), vocation (farming), and social structures (which emphasized such elements as parliamentary democracy, individual rights, and notions of private property). Assimilation into the broader society was the long range goal.
McCaskill (1983) notes the ironies involved. "After Indians were no longer useful for economic or military purposes, the government established a system of reserves designed to 'protect and civilize' native people in order that they might eventually assimilate. ... In theory, Indians were to learn to exercise self-determination and assume responsibilities for their own affairs." (p.289). But, "Encouraged to become self-sufficient, the Indian was prevented from being so in almost every area -- economic, political, and administrative." (p.290). McCaskill locates much of the problem in the paradox of the policy itself, i.e., its goal was to bring natives into Canadian society, but it did so by setting them apart and denying them any role in the country's institutional apparatus.
"Viewing the situation as a problem of legitimation (including legitimation of the legal system), we can see that while government agents attempted to justify the values and norms of Canadian society, they made little effort to explain the institutional order by affording Indians any meaningful experience with the institutions themselves." (p.290).
McCaskill (1983) is among those who have referred to this general attitude as colonialism:
"Colonialism involves a relationship which leaves one side dependent on the other to define the world. At the individual level, colonialism involves a situation where one individual is forced to relate to another on terms unilaterally defined by the other." (p.289).
More recently, Dyck (1991) has used the concept of tutelage:
"Reduced to its essentials, tutelage comprises a form of restraint or care exercised by one party over another as well as the condition of being subjected to such protection or guardianship. ... [T]here is an implicit understanding of the unequal status and power of the two parties. What is unusual about the particular form of tutelage experienced by aboriginal peoples in Canada is not that it has involved the exercise of power by one party to guide and shape the conduct of another; ... [it is that their experience] has been based neither upon a contractual agreement nor a negotiated understanding but upon the power of one side to regulate the behaviour of the other in accordance with a set of unilaterally selected purposes." (p.24).
A key word in both the above quotes is "unilateral", i.e., where, because of the presumed inferiority of one group and the presumed superiority of the other, the allegedly superior group feels justified in the imposition of its motives, methods, and understandings. Such was the case not only in the realm of aboriginal justice, but in virtually every domain of aboriginal life. It was primarily through the Indian Act and its implementors -- the federal Department of Indian Affairs (DIA; created in 1880; later to be the Department of Indian Affairs and Northern Development, or DIAND) -- that the imposition was realized.
The federal government was both relentless and imaginative in the means it employed to assimilate the Indian. The very definition of who was "an Indian", and hence, who also was not, was one of the elements put under government control in the first Indian Act. It is noteworthy that the continuation of Indian status was defined on the father's side: aboriginal men who married non-aboriginal women remained Indian, while aboriginal women who married non-aboriginal men lost their Indian status, as did their children. This reflected European patriarchy, and also established lineages which conflicted with the matrilineal descent practised by many First Nations (e.g., see Joseph, 1991; Wilson, 1985).
The history of Indian administration in Canada from that point onward, is one of increasing control by government authorities over natives. A partial list includes: (a) attempts to suppress "pagan rituals" and promote Christian religions by banning important cultural festivals such as the Potlatch, Thirst Dance, and Sun Dance; (b) efforts to suppress traditional native structures of self-government, and to teach the elements of English-style "good government", through imposition of elected "band councils"; (c) diminishing the influence of natural parents and heightening the in loco parentis role of the Christian churches by requiring children to leave their parents and attend government-sponsored residential schools where use of Indian languages and other aspects of "Indian-ness" were punished; (d) controlling aboriginals' efforts to organize and pursue aboriginal rights by initiating a "pass" system where Indians could not leave their reserve without permission of the Indian Agent, and making it illegal to hire a lawyer to pursue any form of aboriginal rights or land claim; and (e) undermining aboriginal justice structures by giving paramountcy to the Indian Act and other federal and provincial law (e.g., see Cole & Chaikin, 1990; Dyck, 1991; Francis, 1992; Mathias & Yabsley, 1991; Tennant, 1985; Wilson, 1985).
Though there was continual native resistance throughout this process -- primarily by taking aspects of culture "underground" (e.g., with practices like the Potlatch; see Cole & Chaikin, 1990) or simply refusing cooperation (e.g., by holding "show" elections where traditional chiefs would be "elected"; or simply by not seeking "special" status via enfranchisement; see, for example, Francis, 1992; McCaskill, 1983) -- the power of the State is considerable.
The legacy of Canada's assimilative strategies has been horrific, not the least of which has been the Canadian government's "success" at creating conflict where, before, none had existed. Indeed, Machiavelli would have been proud of the effective implementation of divide-and-conquer strategies. Egalitarian social relations among native men and women degenerated over several generations of patriarchy imposed by the Indian Act, and the colonials who implemented it (see Monture-Okanee & Turpel, 1992; Payne, 1992). The exclusionary "citizenship" rules, which stripped native women who married whites of their Indian status, ripped into the heart of aboriginal First Nations, many of whom had traditionally bequeathed titles and responsibilities through matrilineage (Greschner, 1992; Joseph, 1991; Wilson, 1985). Traditional forms of governance were undermined by a century of funding Band Councils, with the result that, in many communities, Band Councils and more traditional structures now conflict over funding and tribal policies (e.g., Hornung, 1991; Mathias & Yabsley, 1991; Tennant, 1990; and York & Pindera, 1991). Parental authority was undermined by the residential schools, with their own horrific dynamics, resulting in several generations of natives who lacked effective and compassionate parental models, thereby creating its own dysfunctions (e.g., Hammersmith, 1992). Further, tribal elders, who gained that status by virtue of their demonstrations of wisdom in dealing with matters such as governance and justice, were denied those opportunities by the forced creation of Band Councils, and the imposed paramountcy of a foreign justice system (Jackson, 1992; Ross, 1992). All told, the Government of Canada has acted more like a government intent on cultural genocide than one concerned with executing its fiduciary responsibilities to the full benefit of native peoples.
Canadians might wish that this treatment of native peoples would be a part of some distant past, but it is not. The law against the Potlatch -- which had long since grown to cover "any Indian festival or gathering" -- was removed as recently as 1951, as was the law against hiring a lawyer to pursue Land Claims in the Courts (see Cole & Chaikin, 1990; Tennant, 1990). The residential schools, and the forced attendance and family separation which went along with them, ended only in the 1960s. As recently as 1969, a document as significant as the Trudeau-Chrétien White Paper -- which proposed to completely dispose of special "Indian" status -- was generated completely without aboriginal participation (Weaver, 1981).
Prospects for Change
There are still persons who would argue that everything would be fine if aboriginals could only accept being "just like us". But the more optimistic among us might argue that the current zeitgeist is one which reflects a major transition in relations between First Nations peoples, other Canadians, and their respective governments. Indeed, there is evidence of burgeoning sensitivity to the role of aboriginals in the history of this continent (e.g., see Berger, 1991; Wright, 1992), of receptivity to aboriginal assertions of self-determination (e.g., see papers by an array of participants in Cassidy, 1991b; see also Cassidy & Bish, 1989), and of some degree of embarrassment with respect to Euro-Canadian treatment of aboriginals in the past (e.g., see Tennant, 1992b). Certainly First Nations issues have risen on the national agenda, aboriginal participation is more likely whenever government is anticipating changes in policy affecting aboriginals, and, notwithstanding the defeat of the constitutional proposals in the 1992 referendum, it would seem that government is quite prepared to move ahead (e.g., see "Time for action on native justice issues, Campbell says", Globe & Mail, 26 November 1992, p.A5). There is a long way to go until the country and its structures reflect a recognition of three rather than two Founding Nations; nonetheless, there has also been much progress. The question now is over what direction to follow, as well as the process by which those directions will be determined.
Transitions in Canada's Indian Policy
Although there is evidence that "mainstream" Canada is rediscovering aboriginal history, and that governmental aboriginal policy is also being reconsidered, any single attribution of "why" this might be occuring now would be sheer speculation. Although any list of factors is bound to be incomplete, the influences I will consider here include (a) the emergence of largesse toward native peoples and native issues after World War II; (b) the catalytic impact of the Trudeau-Chretien White Paper of 1969; (c) the resurgence of native power in the summer of 1990, especially as manifest in the demise of the Meech Lake Accord, and the armed standoff at Oka, Quebec; (d) the cumulative impact of decisions in the Courts, and especially the Supreme Court of Canada, with respect to aboriginal title and aboriginal rights; and (e) international influences, especially as revealed in the emergence of aboriginal supranational organizations, and in developments at the United Nations.
One might suggest that current developments are merely an outgrowth of shifting attitudes toward aboriginals which began in the years following World War II. Tennant (1990) notes that an appreciation of Indian contributions to the war effort (particularly because natives were not subject to conscription, and hence their participation was voluntary), growing realization of the material poverty in which most Indians lived, and the failure of government policies to improve their lot, all combined to spur renewed concern about 'the Indian problem'. In support of that perspective, one can look back to the 1950s and acknowledge removal of some of the more repressive aspects of the Indian Act (such as prohibition of the potlatch, and prohibition of making inquiries or hiring a lawyer to pursue land claims) in 1951, or the granting of the federal vote in 1960.
An array of committees and commissions were soon looking into various aspects of 'the Indian problem', but no significant policy initiatives were undertaken. The biggest problem seemed to be rooted in enduring differences between the aboriginals, who pushed for resolution of land claims and aboriginal rights issues, and the government and its bureaucracy, who wanted the Indians to start acting a bit more like everyone else. The attitude is captured well by a letter from Arthur Laing (Minister of Indian Affairs from 1966-1968) to Gordon Robertson (a senior civil servant), in which he claimed that the main problem with the Indians was that they had not yet accepted the values the government wanted them to accept: "The prime condition in the progress of the Indian people must be the development by themselves of a desire for the goals which we think they should want." (letter dated 19 October 1963; cited by Weaver, 1981, p.48).
The major contributions made by the various committees and commissions of the 1950s and 1960s was to show very clearly the material impoverishment that government and its policies had wrought. Tables and graphs took turns showing higher infant mortality rates, shorter life expectancies, lower educational attainments, higher incarceration rates, and the negative end of every other social indicator on which natives and non-natives could be compared.
The White Paper
A second oft-noted "turning point" is the Trudeau-Chretien White Paper of 1969, which finally offered a completely new look in Indian policy. Its central focus was essentially to get rid of 'Indian' as any sort of 'special' ethnic or racial category: within a few years, there would be no Indian Act, no Department of Indian Affairs, and no vestiges of special status beyond those individual rights that were accorded to all Canadian citizens. Weaver (1981) suggests that the White Paper was very much a reflection of Trudeau's western-liberal perspective of the "just society", in which it was believed that no group should receive the "special" status that would be implied by recognition of their collective rights; justice was best achieved through each person being accorded and guaranteed his or her individual rights. According to this view, Indians were the victims of discrimination pure and simple -- if only their individual rights were guaranteed, then they would soon move to full participation in a grand egalitarian society.
There were a few problems with the White Paper, however, not the least of which was that the government had created it without ever consulting the natives about the abrupt shift in direction it proposed for them. The unilateral declaration was in fact particularly insulting to natives because during the time the White Paper and its policies were being formulated within government, the federal government (including Ministers Chretien and Andras) was concurrently engaged in a series of consultation meetings with Indian leaders on "possible changes to the Indian Act". These, ironically, had been billed as significant evidence of a "new relationship" where government consultation of natives on matters of importance to them was assured. For natives, who knew nothing about the proposed termination policies until the day the White Paper was released, the consultations were shown to be a clear sham, and the assimilation objectives of the government's Indian policy were abundantly evident (Weaver, 1981).
Tennant (1990) is among many those who report that reaction to the White Paper by Indians was relatively quick, and uniformly negative. But there was an inspirational element, as well. Much to the chagrin of those in the Prime Minister's Office, who hoped to appease the natives rather than arouse them (see Weaver, 1981), the White Paper is identified by many as the catalyst which brought First Nations citizens and leaders together, and showed their power as a collective entity.
A Summer of Discontent
A third "turning point" is the summer of 1990, in which two significant events occured. In the first, Manitoba aboriginal MLA Elijah Harper effectively killed the Meech Lake Accord, when he voted 'no' to a procedural vote which required unanimity for discussion to be extended. Later that summer, an extended and armed encounter ensued when the Mohawks of Kanesatake and Kahnawake disagreed with the town of Oka over their plans for expanding a golf course onto Mohawk land (see Hornung, 1991; York & Pindera, 1991).
Both events have come to symbolize the growing resolve among aboriginal peoples to assert their identities and to demand an end to injustice. Oka, in particular, seems to be taking on mythical proportion, with everyone who spoke about aboriginal rights in that year deriving their own "lesson from Oka". Elijah Harper (1991) referred to Oka as an important "first act of unity" among native peoples: "What Oka proved is that aboriginal people are still united and concentrated on specific issues such as land claims and sovereignty." (p.165).
Politicians also commented, mostly in a manner which drew lessons verifying the validity of their own actions. Then-premier Tony Penikett of the Yukon, who had been negotiating an agreement with Yukon Indians, felt that "...the one overriding lesson of Oka is that there is no good alternative to negotiating seriously and in good faith." (1991; p.143). Ontario Premier Bob Rae, who had been actively promoting recognition and negotiation of aboriginal issues among other First Ministers, opined that Oka "...drove everyone to understand that something has to give, and something has to move." (1991; p.153).
The Canadian courts have been the subject of mixed reviews by observers of aboriginal affairs. To fully appreciate these, one must first recognize that the main sources of documentary authority3 for the advancement of aboriginal interests are perceived to include (1) the Royal Proclamation of 1763; (2) the Constitution Act, 1867; and (3) the Constitution Act, 1982 (e.g., see Cassidy, 1991c; Clark, 1990; Krasnick, 1991; J.Sanders, 1991).
The Royal Proclamation, in particular, has taken on the symbolic value of an aboriginal Magna Carta, since it shows the British dealing with the Indians on a nation-to-nation level, and clearly reflects the aboriginal recollection that Europeans were welcome to come and share, but not to monopolize, the continent. It affirmed that the "...several Nations or Tribes with whom We are connected ... should not be molested or disturbed..." in Indian lands, and lands reserved for their use (Royal Proclamation reprinted in Getty & Lussier, 1983, pp.29-37).
As Clark (1990) describes, the Royal Proclamation is a decisive document, since it was issued by the King of England, who was clearly authorized to make such a policy statement on behalf of the England he ruled. While that point may seem self-evident, more important is its corollary, i.e., that, once proclaimed, the Proclamation would remain the official policy of the Crown until it was rescinded or changed by some other duly authorized authority. Clark argues this has never happened in Canada;4 the Constitution Acts of 1867 and 1982 left the policies enunciated by the Proclamation as an encumbrance upon the Government of Canada. Although the Constitution Act, 1867, gives the federal government the exclusive responsibility for "matters regarding Indians and Indian lands", this is in the nature of a fiduciary trust.
From the perspective of the Royal Proclamation, the First Nations are recognized as sovereign authorities in those lands which are reserved from the influence of the federal government. But the new federal government imposed progressively greater legislative authority over Indians. The position of the federal government was an adversarial one. Their arguments held that the federal government alone had sovereign authority over the land mass known as Canada; there were no such things as "aboriginal rights"; and, if there were, then it was within the power of the Government of Canada to extinguish them, and they had done so a long time ago.
At their worst, the courts have been referred to as "handmaidens of government", particularly in their not having adequately questioned "the myth" of absolute federal sovereignty. Boldt & Long (1985a), for example, assert that
"The Canadian courts, like those of New Zealand, Australia, and the United States, act as handmaidens of the government, consistently giving precedence to the legitimacy and validity of government power, policies, and actions at the expense of basic principles of tort, restitution, contract, and property on which the western legal tradition stands. The courts made aboriginal rights subject to the self-interest of the dominant group; they subordinated fundamental principles of justice and human rights to the collective self-interest; and they legitimized the dominant group's use of political and legislative power to deprive the aboriginal peoples of their rights and self-government" (p.183).
J.Y. Henderson (1985) is similarly disapproving. He notes that although the British seem to have generated honourable agreements at a distance, relations in which their colonial representatives were involved were guided by a combination of pragmatism and settler greed. Instead of upholding the rule of law, Henderson argues the courts became the instrument through which injustice was perpetrated, and rationalized. He goes on to suggest that
"The history of aboriginal rights and treaties in the British Empire illustrates that authoritative legal documents have never been sufficient to overcome institutional racism" (p.215).
Perhaps serving as an apologist for the apologists, W.B. Henderson (1985) notes the positivist quality of Canadian jurisprudence, and describes the manner in which this constrained their decisions:
"The judges in this country will look to see if they can find an applicable law and, regardless of their feelings about the merits of that law, will apply it. In numerous native law cases -- some dealing with aboriginal rights, others with treaty rights -- judges have said at some length that though the applicable law is totally immoral and unfair, the law is the law and they have no choice but to apply it." (p.223).
Notwithstanding the negative evaluations by Boldt & Long (1985a) and J.Y. Henderson (1985), it is also true that the Courts, and especially the Supreme Court, have clearly had a positive effect on the course of aboriginal-governmental relations. Two of the most significant events in that arena were (1) Calder v Attorney General of British Columbia (1973); and (2) Court decisions following implementation of the Constitution Act, 1982, involving interpretation of sec 35(1), which notes that "...the existing rights of aboriginal people are hereby recognized and affirmed..."
Calder v Attorney General of British Columbia was brought forth by Frank Calder, of the Nisga'a First Nation of British Columbia, who sought court recognition that aboriginal title to the Nass valley had never been extinguished. The British Columbia government had argued that (a) there was no such thing as aboriginal title; or (b) if there was such a thing, it was extinguished long ago. The B.C. Supreme Court had supported the province's assertions, but the matter had been appealed to the Supreme Court.
Seven judges of the Supreme Court heard the appeal, and one of the Justices decided against the Nisga'a on purely procedural grounds.5 Of the remaining six, all agreed there had indeed been such a thing as "Indian title", but were divided 3-3 on the question of whether that title still existed, or had been extinguished. Three felt that extinguishment had to be done explicitly, and noted that the B.C. government had never done so, ergo Indian title to the Nass Valley must still exist. The other three felt that extinguishment could be done implicitly, and ruled that the government had done so when it showed actions consistent with the idea that extinguishment had occurred (e.g., by giving European settlers permission to settle in a location, even though a treaty with the relevant First Nation(s) had not yet been signed. As Tennant (1990) describes it,
"In practical terms the Nisga'a appeal thus failed. ... Still, the fact that three members of Canada's highest court viewed Nisga'a title as still in existence was a major turn of events (and one which soon led the federal government to agree to negotiate where title had not been explicitly extinguished). The province had clearly lost the legal argument over pre-existing title and had almost lost on the issue of continuing title. It now had good reason to fear future court decisions." (p.221)
Tennant (1990) is not the only one to ascribe such significance to the Nisga'a "loss" in Calder. Weaver (1981) noted that the decision "...significantly influenced Trudeau's own thinking, leading him to believe there was greater legitimacy to Indian title than he had thought in 1969." (p.198), and she notes also the subsequent emergence of a new federal policy regarding comprehensive claim settlements. Though Yukon aboriginal leader Peter Ittinuar (1985) expressed skepticism about the courts as a route to resolution of rights claims, he, too, recognized the positive impact of Calder:
"Prior to the Calder decision, the federal government felt it could deal with outstanding native claims in the North at its own discretion because our claims had no sound legal basis. The decision in the Calder case gave our claims a much greater legal validity and prompted the government to enter into a process of meaningful formal negotiations" (pp.49-50).
Subsequent litigation at the Supreme Court pecked away at the adversarial wall which the federal government had erected over the concept of aboriginal rights. The biggest transition, however, had its advent with the Constitution Act, 1982. As Lyon (1992) describes,
"Before 1982, we had a written constitution, but we did not have the legal mindset that goes with constitutionalism. The Canadian legal profession hung tenaciously to a model of constitutional law built on the doctrine of parliamentary supremacy, and the values of the common law served by default as the shared values of Canadian society." (p.306).
It was their failure to question parliamentary supremacy that undermined the integrity of the Canadian judiciary in the eyes of critics like J.Y. Henderson (1985) and Boldt and Long (1985a). The problem is that, with respect to aboriginal peoples, it was all based on a selective recollection of history. Lyon (1992) cites Gunnar Myrdal's 1967 Wimmer Lecture to the effect that "...we guard our ignorance about aboriginal peoples and of their treatment by Euro-Canadians in order to protect our belief that they neither deserve nor can handle the right of self-determination that we take for granted for ourselves." (p.307). Thus, as Lyon argues, as long as we could continue guarding the lie through a self-referential and self-serving common law that treated parliament as supreme, then all remained intact. But the Constitution Act, 1982 created a different reality; the Charter of Rights and Freedoms offers a higher authority than Parliament, and Section 35(1) adds that "the existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed."
Of those Supreme Court decisions which have been rendered since 1982, Lyon (1992), Macklem (1992), and Wildsmith (1992) all see the decision in Sparrow v Regina (1986) as having given strong indications about what that reality will involve. Tennant (1990) explains: "The case arose when Ronald Sparrow, a Musqueum, was charged with contravening federal regulations while fishing in the Lower Fraser River. The location was not part of a reserve, nor did any treaty apply." (p.225). Macklem (1992) draws its implications for aboriginal rights issues in the following manner:
"At issue was whether the Musqueum nation ... could assert an Aboriginal right to fish that would override federal regulations... The Musqueum asserted that their right to fish was an 'existing' Aboriginal right, 'recognized and affirmed' by s.35(1) of the Constitution Act, and therefore paramount over federal law that regulated its exercise." (p.283).
The Supreme Court ruled in their favour. The court's reasoning was that "...although Canada enjoys sovereignty over its indigenous population,..." (Macklem, 1992, p.283), fishing is demonstrably "aboriginal", and a part of "existing" aboriginal rights that are now guaranteed by the Constitution. More importantly, the Court ruled that the existence of federal legislation is irrelevant:
"... the Court in Sparrow held that s.35(1) Aboriginal rights are not contingent upon the exercise of legislative or executive authority. In the Court's view, the reason for concluding that the Musqueum nation enjoys a right to fish lies not in the presence of state action conferring such a right onto the Musqueum people but instead because fishing is integral to Musqueum self-identity and self-preservation" (pp.283-284).
The important point here is that
"The content of Aboriginal rights thus is to be determined not by reference to whether executive or legislative action conferred such a right on the people in question, but rather by reference to that which is essential to or inherent in the unique relations that Aboriginal peoples have with nature and each other." (p.284).
Lyon (1992) explains the decision in Sparrow, later reaffirmed in a case involving Sioui, as an elaboration of the federal government's fiduciary responsibilities with respect to natives:
"The language of both judgements makes it clear that if the Supreme Court were an international tribunal it would have required the Crown to honour its committments." (p.308).
As for the nature of these committments,
"Before Sparrow, it was possible to define the Crown's special relationship simply in terms of the right to go on the land to hunt and fish. Now we have both Sparrow and Sioui to tell us that our understanding of aboriginal rights has been built on a misreading of history and a persistent failure of governments to honour their committments. The government's duty is to protect a way of life, not just certain activities." (pp.310-311).
Whether decisions of this sort will continue to be made in favour of aboriginal participants in Court actions, is another issue. Most recently -- in a decision which came after both the Sparrow and Sioui cases cited above -- Chief Justice Allan McEachern of the B.C. Supreme Court decided against the Gitksan and Wet'suwet'en [plaintiffs in Delgamuukw v the Queen (1991)] in their joint effort to assert aboriginal title to their homelands in British Columbia. The decision was disappointing to the Gitksan-Wet'suwet'en and their supporters for many reasons (see Cassidy, 1992a), not the least of which was an apparently intentional historical myopia shown by the Chief Justice, and the insult of his refusing to consider oral history evidence which the Gitksan-Wet'suwet'en had chosen, only with great trepidation, to share in public court for the first time (see Monet & Skanu'u, 1992).
As Fisher (1992) describes, it was ominous that the judge would take one of the "standard" Eurocentric histories (Woodcock, 1990) as his launching point. In keeping with the general tenor of that history, MacEachern believed that the aboriginals were a fallen people with little to offer. In contrast to their oral history, which he saw as a "romanticized" view of their past, MacEachern made reference to the pre-contact life of the aboriginals as having been little more than "nasty, brutish, and short". The Chief Justice, whose 400 page decision shared at least two of those attributes, added further insult to injury by opining that the Gitksan-Wet'suwet'en ancestors of the plaintiffs had "roamed" on their lands for thousands of years on little more than "survival instincts", and that, although they might have had "folkways" or "customs", there was no way indigenous peoples had anything which might "properly" be termed "law".6
Quite in contrast to contemporary standards of civility, if not law (e.g., see Clark, 1990; Foster, 1992; Kellock & Anderson, 1992), the judgement in Delgamuukw v the Queen suggests that Indian title to British Columbia could be extinguished implicitly, if, in the judgement of the court, the provincial government had acted in a manner which showed in some "clear and plain" manner that the province was acting to extinguish aboriginal title (e.g., see Burns, 1992). The judge could point to no particular action in this regard, but inferred that extinguishment had occured by virtue of the provincial government acting as if it had. It is interesting that he notes often the behaviour of then Surveyor-General Joseph Trutch, who is typically portrayed in historical research as a governmental robber baron who seemed to believe that if one ignored the Indians for long enough, they and the problems associated with them would all go away (e.g., see Fisher, 1992; Tennant, 1990).7 Ironically, acceptance of the MacEachern judgement would make him correct.
One wonders how Indians might have expressed their objections to the action at the time, since it had no clear temporal onset. It may also be recalled that this was the period when objection would have been further obstructed by the use of the new Indian Act to undermine Indian citizenship and traditional forms of Indian government, to constrain dissent by making it illegal for Indians to leave their reserve (without the Indian Agent's permission) to discuss matters of common interest with other Indians, and to deny access to the courts by making it illegal for Indians to hire a lawyer, or raise money to attempt to hire a lawyer, in order to pursue land claims.
All things considered, Chief Justice MacEachern's judgement seems a regrettably classic example of the court serving as "the handmaiden of government" (e.g., recall Boldt & Long, 1985a; J.Y. Henderson, 1985). Given supportive contemporary attitudes regarding aboriginal issues among the public, and a Supreme Court that has shown an openness to assertions of aboriginal rights following the advent of the Constitution Act, 1982, the Delgamuukw judgement seemed totally out of place, having more in common with judgements from the latter 19th century than with the contemporary courts. Had this been because of some consistent allegiance to legal memorabilia, one might understand, but the Chief Justice's eschewing of the applicability of the Royal Proclamation showed that his historical choices were selective rather than uniform. On the other hand, there were also many observers who were highly critical of the judgement, which they viewed as disparaging, condescending, paternalistic, and self-righteous (e.g., see an array of commentary in Cassidy, 1992a). One assumes the case will eventually work its way to the Supreme Court.
By way of general summary, it can be seen that the Courts, and especially the Supreme Court, have, for the most part, rendered decisions which have been encouraging to aboriginal peoples. Their decisions have been associated with termination of government inertia regarding claim negotiation, have shown many of the government's adversarial assertions to be combative, frivolous, and occasionally in questionable taste, and have shown many of the aboriginal assertions to have considerable merit. Perhaps the Court's greatest contribution, however, has been the way their decisions have greatly increased aboriginal leverage in negotiation by documenting the strength of their position.
All things considered, however, it seems most of those involved would prefer to avoid the Courts, due to their many disadvantages: (1) costliness in terms of human and financial resources; (2) the adversarial and hence often acrimonious nature of proceedings, which is hardly the type of relationship one would hope to have between government and aboriginal leaders; (3) unpredictable outcomes which are usually at one extreme or the other, rather than a mediated solution which is agreeable to both parties and potentially more flexible in the nature of arrangements to be derived; and (4) they are run by the Euro-Canadian government which, from the aboriginal perspective, is a foreign system, in a foreign language, under somebody else's control.
The International Forum
There are many ways in which Canadian aboriginal leaders are connected to the international arena, three of which are of particular interest in the present context: (1) the unique relation which exists between Canadian First Nations leaders and the English Monarchy; (2) participation in the international aboriginal community; and (3) United Nations working groups and committees dealing with aboriginal issues.
Douglas Sanders (1985) notes that supranational strategies typically are not available to minority groups, since questions about minority rights are generally considered "domestic" issues. Nonetheless, natives have found this avenue open to them for a variety of reasons; e.g., as Sanders cites, they were an indigenous sovereign culture who were victims of colonialism; their Canadian history includes various direct links with the British Monarchy; and they have a very positive image as the "noble red savage" (however bittersweet that may be) thanks to much romantic literature and art.
The connection with the Crown is stronger in many ways among Natives than it is for most other Canadians. Sanders (1985) notes that most Natives heard from early colonizers about the "Great White Mother" who lived across the sea, and he suggests they believed the talk about British integrity and fairness, particularly with respect to the nation-to-nation status of their relations. Aboriginals fought with the Crown in the war for North America, and were rewarded in part by the Royal Proclamation which was direct from the king, and assured their future under British rule. On various occasions, aboriginal leaders have made direct representations to the Monarch (and were received); many British dignitaries (e.g., Prince of Wales, several Governors General) were made honourary chiefs; and many Royal Visits to Canada have intentionally included trips to particular Native lands.
It should also be noted that natives' faith in the integrity of the Monarchy had often been rewarded -- Britain (generally through the Privy Council) intervened on the Indians' behalf on many occasions when the white colonists (and their governments) were getting a bit too carried away. The problem was that justice from a distant, neutral body became tainted with self-interest when the judgements, involving local interests and local priorities, started to be made by a white judiciary with allegiances to the local (white) order. As J.Y. Henderson (1985) describes it,
"Anglo-American decisions on aboriginal rights share three main themes. First, there is legal acceptance of the doctrine of aboriginal rights and treaties existing in the law of nature and nations, with contractual principles ordering the jurisdiction of European nations and the American nations. Second, the law recognizes the necessity of uniting American nations in a political commonwealth by international treaties of protection, so that they can be protected by the ultimate sovereign against his subjects and other sovereigns. The third theme, the dark theme, is that once within the colonizer's legal system, each protecting government is mystically given by its courts the unlimited power to extinguish Indian treaty and aboriginal rights for the good of the rest of society." (p.220).
So while they should have been the guardians of the highest principles, the model of our alleged "civility", instead
"The courts became caretakers of the racism of the late nineteenth and twentieth centuries." ... "In its approach to the rights of native peoples the law becomes tyranny at worst and an ineffective apologist at best. The Canadian government may call it law, but it is racism. It is not founded on the principles that recognize the supremacy of God and the rule of law." (J.Y. Henderson, 1985, p.220).
Constraints on the international personality of aboriginal peoples were manifest particularly after 1867, whence the federal government often went out of its way to thwart Indian-regal communication, both to assert its own sense of sovereign authority, and to avoid international embarassment (Sanders, 1985). Still, aboriginal leaders have often made effective use of these links; the success of their efforts to block the patriation of the 1982 Constitution (and thereby gain concessions regarding recognition of aboriginal rights) is a recent example in this regard.
Perhaps it is not surprising to learn that growth in Indian organizations in Canada has been paralleled by similar developments among indigenous peoples in other countries. Sanders (1985) identifies some of the growing number of international aboriginal organizations through which indigenous peoples have found a broader voice, including five bodies which have non-governmental organization (NGO) status at the United Nations: the World Council of Indigenous Peoples, the International Indian Treaty Council, the Indian Law Resource Centre, the Inuit Circumpolar Conference, and the Four Directions Council.
Although, as Sanders (1985) suggests, "It is common wisdom that the queen and the United Nations are powerless" (p.302), the articulation of positions on the international stage "...serves both the short-term goal of applying pressure on the nation-state and the long term goal of developing international standards" (pp.302-303). In that sense, one can see that involvement at the international level has varied benefits -- one gains a platform to vocalize shared concerns, and one also reaffirms that one is indeed a "nation" with "an international character". As Sanders (1985) describes, "Indigenous populations persist in the belief that their rights are not simply a matter for domestic law." (p.303), and their involvement in international forums is testimony to that effect.
Aboriginal involvement at the United Nations has had two main foci in recent decades. Attention to aboriginal concerns can be seen to some degree in the Universal Declaration of Human Rights, ratified in 1948, though a limitation of the Universal Declaration was that it envisioned "rights" only in individual and not also in collective terms (e.g., see Boldt & Long, 1985b; D.Sanders, 1991). This was rectified to some degree by two International Covenants, which were passed in 1966, and declared the right of all "peoples" to self-determination.
Of the two Covenants, one hears most often about The First Protocol to the International Convention for Civil and Political Rights. It states that "all people have the right to self-determination", and that states who sign the covenant "shall promote the realisation of the rights of self-determination, and shall respect that right,..." (Craigie, 1992, p.17). Canada's responsibilities under that Covenant had been acknowledged and discussed in the Report of the Special Committee on Indian Self-Government in Canada (1983; the Penner Report; cited in Sanders, 1985):
"Canada is obliged to protect and promote the rights of the peoples of the Indian First Nations in a manner consistent with the rights guaranteed in the international covenants Canada has signed -- the United Nations Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights, and the Helsinki Final Act of 1975. These agreements guarantee both the fundamental collective rights of peoples to be self-governing and the basic human rights of individuals." (at 136 of Penner report; quoted in Sanders, 1985, p.386).
It is the terms of the Covenant which Canadian aboriginal groups are interested in having the federal government recognize in practice. But the Canadian position has been an extremely cautious one, much to the chagrin of aboriginal representatives. Coon-Come (1991) and Ronnenberg (1991) both commented on the federal government's obstructiveness at the United Nations, noting that Canada has sought to avoid its obligations by arguing that aboriginals in Canada are not "peoples" in the sense of the International Covenant. Joe Sanders (1991) describes the issues thusly:
"In international law, the concept of self-determination encompasses the right of peoples 'freely to determine, without external interference, their political status and to pursue their economic, social, and cultural development'. A people has been authoritatively described by the World Court as 'a group of persons living in a given country or locality, having a race, religion, language and tradition in sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other'. A people identifies itself as such provided the criteria are met. It requires no imagination to realize that Indians are distinct peoples within Canada." (p.191).
Douglas Sanders (1992a) explains Canada's international reluctance in part by noting that the government is loathe to agree to wording which may come back to haunt it in other contexts. This is particularly so because of resemblances on positions with respect to collective rights, which have been put forth both by aboriginal leaders, as well as by francophones in Quebec. In this regard, Sanders reports that Canada's input was to ensure that, in the Declaration on Indigenous Peoples which is now being drafted and discussed, references to "aboriginal rights of self-determination" have added the phrase "within the states in which they find themselves".
One can understand that the Government of Canada is wont to consider the impact of aboriginal matters on other areas in which they have responsibility. On the other hand, Canada's representatives also have been accused of obstructiveness on matters which would seem to have limited precedent value in other domains. Bellegarde (1991), for example, accuses the federal government of being obstructive toward United Nations' research into treaties and other forms of agreements. Sanders (1992b) would seem to agree, suggesting that government reluctance in that instance may have been due, at least in part, to worries about becoming a target in the final Report. In any event, Canada's objections slowed the study by two years, and produced two changes in the study's mandate: (1) that the study would be worldwide in scope, and not focus exclusively on Canada or North America; and (2) that the study would be oriented to the future rather than to past treaties, and would be broadened to include not only treaties per se, but also agreements and "other constructive arrangements" (Sanders, 1992b). The study is now in progress, under the direction of Miguel Alfonso Martinez of Cuba as "special rapporteur", who is also a member of the Working Group on Indigenous Populations, and its bureaucratic parent, the Sub-commission on the Prevention of Discrimination and Protection of Minorities.
The future will likely see Canada's aboriginal leaders engaging in international and supranational activities with equal or greater frequency. As has been the case in the domestic courts, involvement at the international level has brought limited, though significant success, suggesting that international forums will be only one of an array of ventures and collaborations in which Canadian aboriginals continue to be engaged. Their international presence in itself reminds us that aboriginals are not "just another" minority group, but one with an international personality; and any gains in the international forum, create positive ripples domestically. As Sanders (1985) notes:
"Well-meaning advisers have in the past often tried to steer them away from petitions to the crown or appeals at the international level. But the expert's vision of what is possible has proved faulty. Only by ignoring advice and persisting in their beliefs have indigenous peoples initiated changes in the Canadian constitution and in international law." (p.303).
The Future of Aboriginal-Government Relations
Primary researchers who have studied aboriginal-governmental relations note that the First Nations of Canada have been asserting the need to talk about land claims and aboriginal self-government for well over a century (e.g., see Fisher, 1992; Fisher & Coates, 1988; Tennant, 1990). It is the federal and provincial governments who have been the reluctant negotiators, having made the decision some years ago to argue from the position that (a) the lifestyles of the aboriginals did not constitute "occupancy" of the continent; (b) that international rights of discovery (as formulated by the European discoverers) gave them rights of colonization; and (c) that any rights the aboriginals might have, existed solely at the pleasure of the new federal government. Although the internal consistency of these positions made the argument impervious for many years when judged according to the canons of positivist law, the moral bankruptcy and historical distortion required for their imposition seems to have run out of favour.
One fundamental issue continues to leave something of a "policy cleavage", to use the quaint terminology of Romanow (1985), between native and governmental perspectives. The issue is whether aboriginal self-government is an inherent right, or exists only at the pleasure of, and hence is "given" by, the federal government. Its manifestations have been blatantly evident in the context of negotiations regarding self-government arrangements. Examples are well-documented in proceedings of symposia such as Cassidy (1991a), where aboriginal leaders like Watts (1991b), Harper (1991) and Georges Erasmus (1991), joust verbally with government representatives such as then-Minister of Indian Affairs Tom Siddon (1991), DIAND Director General George Da Pont (1991), and Deputy Minister of Justice and Deputy Attorney General Tait (1991). The federal government seems to seek affirmation of its legitimacy as the controller of native destiny. In contrast, aboriginal leaders seek affirmation of their foundational role as the indigenous peoples of this continent, some indication of appreciation for their willingness to share and contribute to the development of the continent, and recognition of their continuing and inherent right of self-determination.
It would be incorrect to write off these differences as mere terminological quibbles, even though both positions lead in the short term along the same path, i.e., to greater allowances for and exercise of self-determinative and self-determined strategies among aboriginal First Nations and their peoples. At issue are fundamental differences on the key question of who has the final say when it comes to the directions, and degree of change, that are "acceptable" (e.g., see Boldt & Long, 1985a; Cassidy, 1991c). Governments point to policies of 'devolution' of federal powers, and assert that all changes in the 1990s are initiated by natives themselves. Natives, on the other hand, point out that it is still governmental ears which listen to the proposals, and governmental hands which control the purse strings, and that their hearing can be remarkably impaired or acute, and their responses very agile or slow, depending on whether Indians "speak" to governments in terms that are meaningful to them, and in accordance with their own budgets and priorities.
While political leaders seek resolution of apparent impasses on the "big" issues such as that noted above, Dobell, in his foreward to Cassidy and Bish (1989), argues that ambiguity at that level need not necessarily preclude continuing development of programmes and structures at a day-to-day level. Indeed, Cassidy and Bish (1989) is a revelation of the myriad ways that "Indian self-government" is constructed and reconstructed on a daily basis. But my interest here is not in reiterating the contents of that volume, which looks at self-government in a broad sense, but rather, to look at the nature of aboriginal-government relations and negotiations in the particular microcosm of criminal justice.
Tensions that are being played out in the justice area parallel those in the broader domain of aboriginal-governmental relations. The need for change is abundantly obvious, with the relationship between aboriginal peoples and the Canadian justice system having been described by some as Canada's national disgrace (e.g., see McCaskill, 1983). The over-representation of natives in Canada's jails and prisons has been well-documented (e.g., see Jackson, 1988; McCaskill, 1983; Zimmerman, 1992), and putting the basis for this over-representation solely at the foot of greater aboriginal criminality has become increasingly untenable.
Academics and an array of Commissions have been unanimous in recognizing and lamenting practices which are to the detriment of aboriginal peoples at every level of the criminal justice system (e.g., Hamilton & Sinclair, 1991; Law Reform Commission, 1991; Task Force on the Criminal Justice System, 1991; Zimmerman, 1992). Indeed, it seems clear that natives are discriminated against at virtually every moment of the criminal justice process -- they are "over-policed" compared to non-natives; are placed under greater surveillance; are more likely to be arrested than whites given identical circumstances; are less likely to have adequate legal representation; are less likely to understand court procedures (for both linguistic and broader cultural reasons); are more likely to plead guilty; are less likely to be granted bail; are more likely to be given incarcerative sentences; and are less likely to receive probation and parole than non-natives with similar offence histories. (e.g., Law Reform Commission, 1991; Sawatsky, 1992; Zimmerman, 1992). The general picture is one of institutionalized racism, i.e., where aboriginal peoples are systematically disadvantaged whenever they are placed in the crucible of contemporary Canadian criminal justice.
Although the magnitude of the problem is by now well known, the question of what to do remains. In that regard, an array of Royal Commissions, provincial Boards of Inquiry, and myriad policy articles have offered advice which can be conceived as falling into a continuum of possibilities which, at their extremes, promote accomodation, or autonomy.
Accomodative Strategies in Aboriginal Justice
The notion of accomodation reflects the belief that, while there are many reasons to believe that the Canadian criminal justice system must change in its relations with aboriginals, our current system of justice is sufficiently understanding, flexible, and compassionate to accomodate to aboriginals and their needs. And although the phrase "accomodative strategies" suggests a homogeneous category, it is probably best to envision a continuum of possibilities, each of which involves some degree of deflection away from status quo Euro-Canadian justice, albeit united by the belief that the status quo should remain the standard, the question being one of how much one is allowed to deviate.
Those who have worried about the "impracticalities" of making wholesale changes to aboriginal-governmental relations in the justice area have suggested that, as a minimum, efforts could be made to involve more persons of aboriginal heritage in the criminal justice system. The Task Force on the Criminal Justice System (1991), for example, stated
"It is our position that numerous changes can be made relatively quickly to the existing criminal justice system to make it more sensitive to the needs of Aboriginal people. The first step in this process is the "indigenization" of the criminal justice system.... [which] can, in fact, go a long way toward meeting the wishes of some Aboriginal people." (p.1-7).
By "indigenization", the Task Force meant an effort to ensure that native accused understand the legal processes that involve them, and, especially, representation by aboriginals at all levels of the criminal justice planning and programme delivery process, e.g., more native police officers for better understanding and community liaison; more translators to ensure that accused understand what is going on in court; more native courtworkers to explain proceedings to the accused; and an effort to secure more aboriginal judges, perhaps as justices of the peace, with limited jurisdiction, in the lower courts (see Siddon, 1991).
"We believe that to achieve harmony between the justice system and the Aboriginal people, they must be fully involved in any policy development, program planning and implementation and service delivery with respect to the criminal justice system." (Task Force, 1991, p.1-1).
Others have agreed that aboriginals are highly under-represented among criminal justice practitioners, and that "indigenization", as an interim measure, would redress a glaring and unacceptable situation (e.g., Hamilton & Sinclair, 1991; Law Reform Commission, 1991).
Understanding Indian Reality
Although similar in many respects, Ross (1992) has taken the matter a step further by calling not only for moves which will help Indians understand the justice system, but also in suggesting that the justice system could do a lot better job of understanding natives. Ross is a Crown Attorney with the Northern Ontario circuit court, and his book, which is aptly subtitled "Exploring Indian Reality", emerged from his efforts "... to articulate [his] confusion at the actions, reaction and explanations of Native victims and witnesses in the court process." (p.xvii). Based on his own observation, and aided by discussion with aboriginal leaders and criminal justice practitioners, Ross induces a set of principles, or "ethics", which offer greater understanding of the Ojibway and Cree peoples with whom he comes in contact. Through it, we also begin to see how many of their cultural tenets leave aboriginal peoples systematically disadvantaged in the courts.
Two of these desiderata, for example, are the "ethic of non-interference", and "the ethic that anger not be shown". The first expresses the principle that aboriginals (or at least those on Ross's court circuit) should never interfere in another person's life, no matter what the consequences, while the second affirms that anger should never be directed overtly toward another person. Just these two can be seen to make elements of the court problematic, since the requirement to give evidence can be seen as interference in the affairs of others, while victim impact testimony, to the extent that it is solicited at all, would (by the second ethic) in all likelihood be seen as unconvincing because of the flat tone in which it was offered. Mannette (1992b) offers a similar example regarding the Mi'kmaq. She notes that in the Mi'kmaq culture, emotionality is not reflected by overt emotional tone such as the raising of the voice, but in the language chosen, with the result that Mi'kmaq are not seen as "good witnesses" because of what is perceived as their "passive" demeanour and flat tone.
Ross also notes a corollary ethic involving truth-telling among many aboriginal groups. For many First Nations, where oral history is valued and responsibility for one's actions paramount, telling a lie can be seen as a horrid crime. Ross notes that this is the case among the Mohawks, where a reputation for lying follows one forever, and where, for one's third 'conviction' for lying -- which included such actions as attempting to deny or minimize one's behaviour -- the consequence was banishment. Ross (1992) continues:
"Among all Native groups with whom I have worked there appears to be nothing akin to our 'right to silence', our right to refuse to incriminate ourselves. On the contrary, there appears to be an opposite commandment, one that requires full disclosure, full acknowledgement of wrongs. ... It may be that this ethic contributes substantially to the high frequency of guilty pleas by native accused. At the very least, it contributes to a high rate of full confessions during police questioning, and these confessions are often what lead defence counsel to the conclusion that a plea of 'not guilty' would be fruitless." (p.13).
Ross acknowledges that the principles he has unearthed may not generalize beyond the Ojibway and Cree with whom he interacts, or, if they do, may not extend beyond other tribes with hunter-gatherer traditions, especially to those who are more localized, hierarchical, and/or resource rich. Nonetheless, he offers his insights as a first step to finding some mutual accomodation involving aboriginals and the courts, and implores those who are in the system to take steps to enhance their understanding of the aboriginal cultures with whom they deal (see also Denny, 1992, on this point).
Having taken some of those steps, Yukon Territorial Court Judge Barry Stuart took the matter a step further in his decision in Philip Moses v The Queen (1992). No doubt anticipating the interest that might be taken in his actions by the broader justice community, Stuart begins his judgement with the statement that "The reasons for this sentence will take us on an unusual journey." (p.1). The charges in the case arose from Philip Moses having taken a baseball bat and attempting to assault an RCMP constable. There were also charges for theft (stealing clothes from a home), and breach of probation. Although only 26 years old, Moses had been in trouble with the law before; his prior criminal record included 43 convictions, and his time in juvenile facilities and jail had totalled 8 years. His most recent prior conviction had been three years previous, when he had been sentenced to 15 months. Notwithstanding his native status and horrific background (victim of physical and sexual abuse, poor education, alcohol and substance abuse), it looked like the sentencing hearing following his guilty plea would be a short one, with the only question being how much longer than 15 months he should be sent away for this time. But the court took a detour; Stuart's (1992) reasons for judgement document the procedures he followed and the reasons for doing so.
The report is, first of all, a litany of the myriad ways in which the justice system has been ineffective in doing anything positive with Moses, and, instead, seems only to have exacerbated his problems. Stuart noted that the justice system had probably spent about a quarter of a million dollars on Philip Moses thus far, and that it appeared they had succeeded in little more than making him even more dangerous and destructive. Stuart was determined to find another route.
His first step was to change the physical layout of the courtroom, in the hopes of making the setting less intimidating and judge-centered. The design chosen was a circle, with everyone (including Moses) an 'equal' participant in the discussion about how to best meet the challenge. Stuart began by declaring an upper limit to the sentence; nothing that anyone said could be used to make a more severe sentence for Moses. And then the sentencing hearing began. His description gives one the impression that it was 'community involvement' at its best, with the Na-cho Ny'ak Dun First Nation Chief and Philip Moses's parents being among the active participants in the sentencing hearing (plus many others).
In the end, the sentence was suspended, and Moses was put on probation for two years, with a variety of conditions imposed that had been agreed upon by all the participants, including Moses. The general atmosphere was one in which the grounds for reconciliation among Moses, his family, and his community had been achieved, and one is left with the impression that Moses may well have felt like he belonged and was wanted for the first time in a long time. From this point on, his responsibility is to the circle, with which he will meet at certain defined points in the future. The general tone is certainly one of optimism, particularly since Moses is serving a sentence which he himself took a part in constructing.
Though we don't know yet how the Moses case will "turn out", in a sense it is immaterial. Certainly the court could do no worse for Philip Moses and his community than had been done in the years up to the Stuart (1992) sentence, and one could argue that the important point here was not whether the sentence itself was the "right" one, but that the process by which it was generated was a "proper" one, i.e., with involvement by the community; a joint sitting in which the wishes of the community, and particularly of the elders, was considered and respected; and, committment by the community and the offender to a plan of action. My understanding is that Stuart is now using sentencing circles whenever aboriginal accused are involved, and that one of his colleagues on the Yukon territorial court has joined him in this practice.
The South Island Project
An even more elaborate extension of perhaps the same logic is evident in a project now underway in British Columbia, involving the Nuu-chah-nulth (South Island) Tribal Council, and the provincial court, of Vancouver Island. Tennant (1992a) gives us some contextual background of the Island Salish, who are the major participants in the project, by noting that their traditional structure "...rested on numerous extended families, each headed by a "S'ul Hwen"" (p.4).8 Notwithstanding their historical importance, the role and status of the S'ul Hwen was seriously undermined by the Indian Act and all its prohibitions. Tennant describes how justice among the Salish, as is the case with many other First Nations, is not separate from other aspects of life; the approach is a holistic one, with the emphasis on healing and reconciliation rather than punishment. The central ceremonial spot in the Coast Salish culture is the Bighouse, and it is here where teaching, councils, and healing would occur.
The project started with a number of educational workshops organized by Provincial Court Judge Douglas Campbell through the Western Judicial Education Centre. Initially the workshops were primarily for judges, but soon grew to involve many different aboriginal and criminal justice practitioners. Soon, the South Island justice project was organized, and a "Council of the S'ul Hwen" was formed, who would receive referrals from families, police, crown, and/or the courts. Essentially, the project involved creating a "diversion" scheme where (a) if a case met criteria specified by the S'ul Hwen as being within their domain of expertise and interest; and (b) it was agreeable to victim and perpetrator to go through the alternative system, they went for it. There were many types of cases the S'ul Hwen decided they would avoid, at least for now, both because of a paucity of resources (i.e., only so many elders), and perhaps also to foster early success and enhance confidence. Tennant reports that a major part of the process involved the building of mutual credibility and trust between the aboriginal and criminal justice participants.
It was decided that any aboriginal accused could participate, whether Island Salish or not, and whether a resident of a reserve or not; if the person was aboriginal and willing, they would be considered if the other criteria were also met. As for initial exclusions, the S'ul Hwen did not want older recidivist candidates (i.e., start younger), and did not want to get into major or violent crimes, including sexual assault and impaired driving (though some of the examples Tennant gives included stabbings). Most of the cases involved "theft under" and assaults.
At this point, all that can be said is "so far so good", with all immediate participants in the project feeling that the initiative has been positive and beneficial. More detailed assessments, including those which address the broader community's support and/or involvement, have not yet been undertaken. From what has been observed thus far, the project is certainly successful to the extent that (a) it has fostered positive links between the criminal justice system and the natives, and produced an outgrowth of communication and mutual respect; and (b) it is consistent with greater aboriginal self-determination. In that broader context, the most recent indications (from Tennant, 1992a) are that the Island Salish are pleased to the extent that the general attitude of participants in the project see the Elders Council "in partnership" with the existing system, on a "separate and equal" basis.
The final alternative to be reviewed here involves establishing Native or Aboriginal Courts, which, in some ways, represents the most autonomous among the accomodative strategies. There is actually some experience with this alternative to date in other countries -- McCaskill (1983) notes that some aboriginal courts have existed in the United States for more than a century, while Jackson (1992) notes examples of Aboriginal courts in both America and Australia.
The idea of separate aboriginal courts may seem like more of an "autonomous" rather than an "accomodative" solution. Those included in this section of the paper, however, include only those "aboriginal courts" which are essentially indigenized Canadian courts, e.g., which utilize the Criminal Code, engage in adversarial procedures, and adhere to sentencing precedents established in the Provincial and Appeal Courts. To that extent, some cynicism might be expressed about just how "aboriginal" such courts might be. Though the reference in the following quote is to the Australian aboriginal courts, Jackson's (1992) comments might have equal applicability to the Canadian scene:
"There are general feelings of discontent among community members participating in the scheme ... the whole social organization of traditional Aboriginals rests on the kinship structure which is closely linked to expectations and obligations between kin. The Justice of the Peace scheme is creating havoc among tribal Aboriginals in terms of the expectations alone. Tribal laws are either being ignored or undermined by an alien value system. Further, Aboriginal Justices feel they are becoming powerless both within their own law, and within the framework of the...Act. ... There is a lot of resentment and an increasing sense of impotency because they feel they are still advisors to the court." (p.227).
The experience with Aboriginal Courts in the United States has been more extensive, and more positive. Hamilton and Sinclair (1991) note that 145 American Indian tribes operated their own courts, up from between 91 and 111 courts a decade before.9 These numbers include the three types of Tribal Court systems that exist in the United States today, i.e., (1) Traditional or Customary Courts; (2) Courts of Indian Offenses; and (3) Tribal Courts. The traditional courts are those which have continued to operate by virtue of United States First Nations having been declared "domestic dependent nations" by the American Supreme Court in the 1820s, and in the absence of any federal legislation to expressly remove them. Hamilton and Sinclair (1991) noted that there were 14 of these traditional courts in operation when they wrote, while Jackson (1992) adds that all of these exist among the Pueblo Indians of the American south-west.
The Courts of Indian Offenses (CIOs) were first established in 1883. Although the judges were all Indians, their appointments were at the pleasure of the Indian Agent, and the civil and criminal code they implemented was drafted by the Commissioner of Indian Affairs (Hamilton & Sinclair, 1991, p.273). As Jackson (1992) describes them,
"Far from being an instrument of self-determination, they were conceived as an adjunct to the process of cultural assimilation. The establishment of these courts was part of the concerted effort to outlaw traditional cultural institutions, eliminate plural marriages, weaken the influence of the medicine men, promote law and order, civilize the Indians and teach them respect for private property by breaking up tribal land holdings into individual allotments. ... Customary law was ignored or outlawed as it represented a way of life that the court was designed to destroy." (p.227).
Perhaps because of this, Hamilton and Sinclair (1991) report that interest in CIOs had "declined dramatically" over the years, with 23 in existence at the time of their writing. On the other hand, the authors add that
"It is worth noting, however, that this structure still is chosen sometimes as a starting point for a court system for many tribes. For example, the Coushatta Tribe of Louisiana chose a Court of Indian Offenses in 1985 as their first effort at establishing a tribal court." (p.275).
The most common type of tribal court in the United States today are those Tribal Courts which were established under the terms of the Indian Reorganization Act of 1934. Hamilton and Sinclair (1991) explain that
"Indian tribes were authorized by that legislation to enact their own tribal constitutions and law and order codes, under the supervision and ultimate control of the Bureau of Indian Affairs. ... A large number of tribes seized upon this opportunity as a means to reduce the control of the Bureau of Indian Affairs operating directly within their reservations and to restore a greater degree of autonomy.
While the power of agents was reduced somewhat and Courts of Indian Offenses were eliminated for those tribes which selected this option, it also meant that those tribes had to choose to function along the lines of American concepts of democracy and governmental structures by relinquishing their traditional system. ... The tribal governments continued to retain their domestic, dependent nationhood status over internal affairs, but their governmental structure lost its traditional basis, and customary law was replaced by Indian statutory enactments, known as 'tribal codes', as the basis under which daily life was regulated." (pp.273-274).
Notwithstanding the obvious losses in traditional capacities of control over justice and government, there has been a considerable increase in the numbers of such courts over time -- Hamilton & Sinclair (p.275) note that 58 were reported in one 1975 inventory, compared with 108 a decade later.
The most well known of the tribal courts is that operated by the Navajo of New Mexico; indeed, visiting the Navajo seems to be something of a necessary pilgrammage for those who take part in Commissions regarding aboriginal justice. The Navajo justice system functions well, and is strongly supported by the tribe. As Jackson (1992) opines, this may reflect the fact that
"...Indian tribes in the United States perceive the tribal court as their court, an institution which is responsible to them. As ... American Indian jurists pointed out, 'tribal members have developed a respect for the tribal justice system because whether the judges are elected or appointed the judges are ultimately responsible to the tribe." (p.229).
Ironically, however, while the Navajo retain their status as the Tribal Court sine qua non, they have also found the Tribal Court as originally conceived to be overly constrained in the range of alternatives it allows, and hence have expanded to include more traditional options, such as Peacemaker Courts. The fact that the tribal court system is open to such change is certainly an element in its favour, and may account for its popularity in comparison to the straight traditional courts, where the formidable and sometimes impossible (not to mention constraining) pre-requisite of re-creating one's "traditional" system leaves many applicants frozen in the starting blocks.
The biggest limitation in the lessons that can be drawn from the Navajo experience is its uniqueness -- the sheer magnitude of their system yields economies of scale that are available to no other First Nation, and the number of persons required to implement the system would be beyond the capability of most other tribal governments:
"The Navajo reservation covers many thousands of acres, with a resident population of close to 200,000 and a tribal justice budget in the millions of dollars. There are simply no Aboriginal communities of that size in Canada." (Hamilton & Sinclair, 1991, p.268).
On the other hand, Hamilton & Sinclair also cite many examples of tribal courts working well among smaller communities, such as the Northwest Intertribal Court System (in Washington State), which shares an aboriginal judiciary among sixteen different tribes, involving communities of 200 to 500 people. They conclude that
"It is clear that the existence of fully functioning tribal court systems on a variety of Indian reservations in the United States, many of them similar in size and socio-economic status to Indian reserves in Manitoba, and the benefits which those communities derive from them, are strong evidence that separate Aboriginal justice systems are possible and practical." (p.269).
Considering Accommodationalist Strategies
The preceeding is not an exhaustive inventory of accommodative initiatives, but does reflect the range of initiatives which have been touted by those in the accomodational camp. For the most part, they also represent the range of aboriginal justice initiatives in which the federal government has expressed an interest, and has been willing to fund. Although each is a positive effort, it is also the case that the alternatives suggested do not call into serious question the applicability of the dominant justice system for natives, nor do any of the alternatives pose a threat to the "endowed" philosophy of aboriginal rights that the federal government has proferred, with mixed success, in the courts.
Critical commentary on the accomodative strategies has been abundant. This is particularly so for the "indigenization" alternatives which try and accomodate native accused by offering translation services and native courtworkers, or which suggest that a sprinkling of native police officers, corrections officers and justices of the peace will somehow sensitize and humanize the system regarding what are often construed as "the problems of Indian people". Their major advantage seems to be that they are the easiest and "most practical" things to do (e.g., see Task Force, 1990).
But perhaps this is another way of saying that they are only simple add-ons which change the sizzle, but not the steak. Lyon (1992) considers such changes mere appeasements, which only postpone, rather than preclude, failure. Hamilton and Sinclair (1991) agree, stating that such changes in and of themselves are superficial, and do nothing to address the injustice that first led to considerations of reform.
Sawatsky (1992) refers to this emphasis on gradual improvement to the system as "evolutionary" change, which, in this instance, he finds completely problematic: "The evolutionary approach, unfortunately, is proving to be the most insidious form of assimilation ever devised for the native community." (p.89). The problem, he suggests, is that "When faced with the need for change, the evolutionary approach does not seriously challenge the institution itself or those who work within it. In fact, it enhances its power. Gradually improving the system ... simply legitimizes that structure." (p.90). McCaskill (1983) agrees, suggesting that efforts to "patch up" the system in this manner miss the point that it is the system itself which must be questioned, particularly in terms of the respect it shows for the "differing values and customs of native culture" (p.297). Sawatsky (1992) concludes: "The evolutionary approach clearly serves the purposes of assimilation, not self-determination." (p.91).
The evaluation is more complex when it comes to accomodative strategies such as the court incorporating Elders into the sentencing process (e.g., Stuart, 1992). On the one hand, such a change shows considerable sensitivity on the part of the presiding judge with respect to physical and procedural attributes of the court which have created barriers between the court and the community, and a positive motivation to involve the community, and take their beliefs and standards into consideration. On the other hand, if the local community has historically exerted its own methods of social control and dispute resolution, and is willing and capable of making those decisions now, one has to question why there is a need for Stuart at all. Indeed, Stuart's presence in the proceedings, and his position as the one who is "responsible" for making the "final" decision, can be criticized once again as little more than assimilationism in accommodationalist clothing.
Further to the above, one might consider the Elders who are involved. The status of "Elder" is not synonymous simply with the idea of "an older person" as is implied in English. The overlap is true only to the extent that aging is imperfectly associated with experience and learning; one becomes an "Elder" by virtue of the wisdom and expertise which is developed and shown across a variety situations. Ross (1992) and Jackson (1992) have noted how many of the developments in aboriginal policy over the last hundred years (and particularly the Indian Act) have been destructive of aboriginal cultures in the manner of having taken away situations of governance which had provided elders with the opportunity to develop and show their wisdom, thereby undermining their authority. With respect to Philip Moses v the Queen, therefore, the question is whether Stuart is reaffirming the Elders' role within the community by involving them in the process, or, instead, is merely affirming their inferior status to him, as representative of Her Majesty's justice. Perhaps the best indications of this will come when and if Stuart and/or his colleagues entertain a next step, where, for example, elders and Stuart might agree to serve as part of an egalitarian 'sentencing council' of sorts, e.g., where Stuart is one vote but not the major decision-maker, or where Stuart orchestrates his own obsolescence by putting sentencing decisions into the hands of the elders themselves.
Opinions have been less negative, and more ambivalent, with respect to the creation of an aboriginal court, the beginnings of which might be thought to have been evident in the South Island criminal justice project. On the one hand, there is considerable promise. Indeed, it is also hard to find fault with initiatives such as the South Island criminal justice project, when they are formulated in concert with the respective tribal government. More generally, McCaskill (1983) has stated that one "... strategy available to native people involves more middle-range goals. It addresses the issue of the justice system being out of phase with the customs and values of native society and seeks to establish judicial institutions which are more consistent with those values. The development of a separate Indian court system is an example of an institution of this kind." (p.295).
The bigger issue is not so much the existence of tribal courts per se, but whether the courts will be constrained to an existence as aboriginal clones to the dominant Euro-Canadian system, or whether aboriginal justice systems would be able to consider and determine their own forms and development (e.g., which might or might not involve codified law, and which might or might not involve "courts" as we conceive them). In the latter case, the central issue is not so much where one starts in the implementation of an aboriginal justice system, but over who has control over the gas pedal, steering wheel, and brake.
The Minister of Indian Affairs indicated that he and the Prime Minister were "committed" to finding "...practical ways to ensure that aboriginal communities can exercise greater control over the administration of justice." (p.160), after which he immediately added: "However, we must keep in mind that there will clearly be some limitations on this control. ... Indians must respect the laws of this country and the rights of its non-native citizens." (Siddon, 1991, p.160). Siddon's comments would seem to suggest that the shape of aboriginal justice must conform to non-aboriginal conceptions of it -- the equivalent, perhaps, to giving aboriginals control over the gas pedal and brake, but keeping the steering wheel under governmental control. But as Greschner (1992) notes:
"It is almost oxymoronic to talk of non-aboriginal conceptions of aboriginal rights; if aboriginal rights are not given their meaning by aboriginal peoples, they are not truly Aboriginal." (p.344).
Ovide Mercredi, Head Chief of the Assembly of First Nations, expresses a similar view. He is quoted in the Law Reform Commission's (1991) report to have eschewed the idea that small-scale "fixing" might solve the current situation, or that limits should be declared a priori. Putting these matters in the context of broader relations, he stated:
"The real issue is what some people have called cultural imperialism, where one group of people who are distinct make a decision for all other people. ... Our experiences are such that, [even] if you make [the current system] more representative, it's still your law that would apply, it would still be your police forces that would enforce the laws, it would still be your courts that would interpret them, and it would still be your corrections system that houses the people that go through the court system. It would not be our language that is used in the system. It would not be our laws. It would not be our traditions, our customs or our values that decide what happens in the system. That is what I mean by cultural imperialism." (p.13).
As this again suggests, the central issue is one of the extent to which federal politicians and bureaucrats believe in the virtues of aboriginal self-determination, or will continue to take an adversarial stance in their resort to litigation and control. Greschner (1992) states that
"Truly new criminal justice systems, ones that will embody and deliver the justice of and not merely to aboriginal peoples, must be built on aboriginal concepts and traditions. ... Building 'just' criminal justice systems necessarily involves not only including aboriginal peoples as participants in the systems' substance and process, but ensuring that they are the systems' dreamers, architects and caretakers." (pp.341-342).
The Law Reform Commission (1991) would agree, asserting that "The time has come to co-operate in the creation of Aboriginal-controlled systems of justice, for which many possible models exist." (p.13). Many others have expressed similar sentiments (e.g., Bellegarde, 1991; Hamilton & Sinclair, 1991; Jackson, 1992; Joe, 1991; Monture-Okanee & Turpel, 1992), and suggest that the only thing impeding such developments occuring is political will, or the lack of it, since the legal foundation to enable such developments clearly exist (e.g., Jackson, 1992; Lyon, 1992; Mackay, 1992). Just what such systems might involve, requires first some consideration of the traditions that have characterized aboriginal justice.
Traditions in Aboriginal Justice
What aboriginal justice may have involved during the "pre-contact" period is largely unknown, though Macklem (1992) suggests that
"It is common knowledge that prior to the arrival of European settlers, the Aboriginal peoples of North America had complex and sophisticated forms of economic, social, political and legal organization, including methods and procedures for dealing with misconduct on the part of individuals. ... Traditional arrangements respecting the administration of criminal justice were but one component of the complex web of social and political practices that constituted and reproduced Aboriginal communities prior to European contact." (pp.281-282)
With the arrival of the Europeans, however, came exposure to an alien system of justice. The differences between aboriginal and European legal systems were legion.10
Social Control, But With the Emphasis on "Social"
Aboriginal-European differences are evident even with such basic considerations as what comprised "crime", which, as one might expect, was associated also with differences in what one might consider "justice". Hamilton and Sinclair (1991) assert that aboriginal communities showed tolerance for a broader range of behaviour, i.e., fewer acts were considered "criminal" among the aboriginals than among the Europeans. One indicator of tolerance was the absence of "crimes without victims".
Indeed, Sawatsky (1992) suggests that there is no aboriginal word for "crime" at all. Recall that most aboriginal communities were sufficiently small for control interactions to occur on an ongoing, face-to-face basis, often on the basis of familial structures. Banishment would be used only in the most extreme of circumstances; otherwise, reconciliation was the objective being sought, no matter what the situation. Given that there was no behaviour for which a separate control system was activated (i.e., all matters were considered by the relevant families), there would be no need to designate a separate "crime" category, since there was no "crime" system to engage. Instead, therefore, the emphasis was on the recognition and resolution of injury, harm, conflicts and disputes.
Responsibility and Accountability
Within the Euro-Canadian tradition, in contrast, with its specialized and professional control apparatus, "crime" demarcates the raw material which falls within the mandate of those involved in "criminal justice". A crucial determination is that of guilt, and the actus reus (or criminal act) is one of two considerations (the other being mens rea, or intent) for that determination. Monture-Okanee and Turpel (1992) explain that aboriginal systems do not make a distinction between the act (actus reus) and its mental elements (mens rea, or intent). As this suggests, there is often said to be no word that is the equivalent of "guilt" in aboriginal languages, though it is perhaps more informative to say that there is no such thing as an "accident" in aboriginal systems (see also Jackson, 1992; Sawatsky, 1992). The questions in aboriginal justice are those of accountability and responsibility; if one is responsible for a deleterious consequence, then accountability falls to that person and his or her kin group. Whether one intended to cause the consequence is beside the point; one is responsible for the restoration of harmony within the group.11
Consistent with these notions are several consequences, i.e., (1) adversarial proceedings are not necessary; one takes responsibility for one's actions and admits one's guilt in the aboriginal setting, unlike the Euro-Canadian system where one is not obliged to say anything, while the Crown is obliged to prove its case; and (2) the emphasis is on building consensus among all involved as to what the appropriate resolution to re-establish harmony might be (Sawatsky, 1992).
Inter- and Intrafamilial Resolution
A further difference lay in the determination of who was affected by the crime, and hence relevant to its resolution. Jackson (1992) notes that it is common to find aboriginal justice systems treating "crime" as an action against the community, not as an action against the abstract "state". This clearly has implications for the way that justice is sought. For Europeans, the aggrieved state brings an action against a perpetrator; among aboriginals, resolution is sought among people who know the offender and the victim. As this implies, further differences exist in the view that is taken of European desiderata like judicial distance and impartiality. While the Euro-Canadian justice system attempts to avoid intimacy to avoid what would be perceived as a conflict of interest, aboriginals perceive the use of strangers to decide such matters as an absurdity -- justice can only come when all relevant persons, i.e., all those affected, including "victim" and "offender" and their respective families, are involved. As Monture-Okanee and Turpel (1992) describe:
"The person with authority to resolve conflicts among aboriginal peoples in their community must be someone known to them who can look at all aspects of a problem, not an unknown person set apart from the community in an 'impartial' way. A 'judge' from a non-aboriginal context is simply an outsider without authority." (p.246).
The role of Elders is important here, particularly those who are associated with the families of offender and victim, plus those who are particularly expert in matters of conflict resolution.
Justice as a Part of Everyday Life
As this further suggests, the restoration of justice was considered very much a part of the broader network of social relations within the community, rather than a specialized domain which was the province of specialists. From an aboriginal perspective then, as Monture-Okanee and Turpel (1992) assert, "...a system in which laws are accessible only through lawyers and professionals seems very remote, unapproachable, and not connected to the kinship structure of aboriginal communities." (p.245). Indeed, Jaenen (1988), on the basis of his study of 17th century Amerindian attitudes regarding the French, suggests that the impersonality of European justice was, to aboriginal eyes, rather extreme:
"The Amerindian distaste for French educational procedures carried over into a general lack of appreciation for French judicial procedures, law and government. The rigidity, lack of flexibility, authoritarianism and excessive concentration of power at the top of administrative pyramids contrasted unfavourably with the democratic procedures in Huron and Iroquois cantons." (p.126).
Reconciliation and Restoration
Traditional aboriginal justice also was at odds with European justice in the very objectives which it appeared to seek. Jaenen (1988), for examples, notes that "French justice did not appeal to the Iroquois because it restricted itself to punishing the wrongdoer, while neglecting to give satisfaction to the wronged." (p.127). As one might expect in a justice system which seeks face-to-face resolution among persons who are familiar to one another, rather than a more impersonal and independent adjudication, the emphasis in aboriginal justice systems has generally been on reconciliation, and the restoration of harmony among the group, rather than punishment. As Jackson (1992) stated, aboriginal conceptions of justice typically
"...place a primary emphasis on restoration and reintegration of an offender into the fabric of communal life, in contrast with the primary emphasis on punishment and isolation which has characterized Euro-Canadian concepts of criminal justice." (p.166)
Monture-Okanee and Turpel (1992) add:
"...[T]he Canadian system is grounded in a belief in 'correctional' punishment based on banishment to special institutions where the goals of retribution, deterrence and reform of the offender legitimize the punishment. Punishment is a concept which is not culturally relevant to aboriginal social experience. Banishment is the most severe remedy available under aboriginal systems of justice. ... Incarceration must be understood as banishment... It is seen as counterproductive, creating further obstacles to the restoration of balance and harmony after an anti-social act." (p.248).
The irony here is that the incarcerative sentences that the Euro-Canadian courts give out routinely are analagous to the most severe that one can give from the aboriginal perspective. At the same time, the problem for aboriginal communities is that while the courts believe they are "doing something" by incapacitating the offender, in fact they do not, since the important elements of reconciliation and restoration required by the community are not possible when the offender has been banished without resolution in the community having first been sought. These differences between aboriginal and European justice systems led Jennings (1976) to comment:
"When one considers the floggings, jailings, hangings, torture and burnings inflicted by European states for the multitude of crimes that did not even exist in Indian society, one becomes painfully aware that an incalculably great proportion of European violence against persons was inflicted by the very agencies whose ostensible function was to reduce violence." (Jennings, 1976, p.111-112; cited by Hamilton & Sinclair, 1991, p.24).
Taken together, the above reveal considerable differences between the Euro-Canadian and traditional aboriginal justice systems, at every level -- pervasiveness, personnel, objectives, means. Numerous authors view these to be so great as to defy any mutual accomodation between aboriginal and the Euro-Canadian system, leading them to call for the creation of a separate aboriginal justice system (e.g., Bellegarde, 1991; Hamilton & Sinclair, 1991; Jackson, 1992; Joe, 1991; Law Reform Commission, 1991; Monture-Okanee & Turpel, 1992).
Prospects of Autonomous Aboriginal Justice
Although the above offers dimensions which have been identified as characteristic of most aboriginal justice systems, two more specific descriptions may help depict what "aboriginal justice" might look like in specific contexts.
Justice Among the Gitksan and Wet'suwet'en
The Gitksan-Wet'suwet'en First Nations of British Columbia are among those First Nations who have retained much of their tradition despite degeneration at the hands of the Indian Act for more than 100 years. They are of interest to the current discussion for several reasons. First, the Gitksan-Wet'suwet'en have shown concrete interest in the development of justice proposals, as is shown in the extensive care which went into the preparation of Unlocking Aboriginal Justice, a proposal prepared jointly by the Gitksan-Wet'suwet'en Education Society, Smithers Indian Friendship Centre, and the Upper Skeena Counselling and Legal Assistance Society (1989). Their proposal offers considerable detail concerning traditional Gitksan-Wet'suwet'en structures, and in describing how the system of justice they envision would integrate with those structures.
It is of interest that the Gitksan-Wet'suwet'en have also attempted other routes in their history. The authors note one earlier effort at the turn of the century -- the Durier system, named after Bishop Paul Durier who initiated it -- which used an externally imposed system, and was a disaster (see also Jackson, 1992). More recently, the Gitksan-Wet'suwet'en also attempted to codify their legal system, but that, too, was problematic. The proposal recalls:
"[S]everal researchers have tried to codify Gitksan and Wet'suwet'en law and have not succeeded. This was not because they were incompetent but because interpretation of those laws depends on the context of the incident to which it is being applied, such as the relationships of the people involved, the ownership of the land where it took place and so on. As a result, codification projects produce either a few lines of basic principles or evolve into long discourses on kinship, history, language, society and culture which may be informative but are not legal codes as understood by western jurisprudence." (p.25)
With regards to other alternatives, the Gitksan-Wet'suwet'en state:
"...[T]he setting up of parallel justice systems for native communities -- with native police, native courts and native jails -- will not work unless the society already has equivalent institutions of its own. The decentralized Gitksan and Wet'suwet'en societies cannot accomodate the hierarchical court system and specialized enforcement powers of the police." (p.25).
This leads the authors to conclude that
"If, as we suggest, the content of indigenous justice, that is its principles, laws and precedents, is to be used in a meaningful way, it must function within the structure of indigenous justice. Attempts to fit the content of one system into the structure of another are bound to fail." (p.25).
Accordingly, the Gitksan-Wet'suwet'en propose changes which will reflect their own traditions. By way of description, the authors note that the Gitksan and Wet'suwet'en are two different but "...socially integrated peoples who live in the Upper Skeena region of northwestern BC." (p.4). The Gitksan number about 5,000, and are related to the Nisga'a and Tsimpsian, while the 2,000 Wet'suwet'en are a part of the Athabaskan cultural and linguistic family. "The formal, structured Gitksan society contrasts with the more egalitarian and spirit conscious Wet'suwet'en, yet for some thousands of years the two peoples have influenced and borrowed from one another to create a shared society without submerging the distinctiveness of either people." (p.5).
Like most other First Nations, family structures were the basic control institution, and most interaction and resolution occured on a face-to-face basis. The elders played a significant role in this regard.
"Authority rather than power governs decision-making and authority is based on personal respect. In this context, political and economic decisions are by consensus, with greater weight given to the thoughts of those with proven ability, experience and wisdom. ... Decisions and laws are not policed. Instead, there is a withdrawal of support from the person or group making the unpopular decision. Those who offend established laws and morals lose authority in the community." (pp.13-14).
The proposal further notes that, for the Gitksan and Wet'suwet'en, justice is not an issue that can be isolated from other aspects of life: "For a Gitksan and Wet'suwet'en there is no such thing as a purely legal transaction or a purely legal institution. All events in both day-to-day and formal life have social, political, spiritual, economic as well as legal aspects." (p.15).
The basic unit in both Gitksan and Wet'suwet'en society is the House -- named after the longhouses in which they used to live -- and there is no higher authority than the House chief. Houses join together in Clans (there are 4 Gitksan and 5 Wet'suwet'en clans). Within a house, there are "wings" of the head chiefs, as well as elders, all of whom are consulted on important decisions. "Authority to deal with outsiders on specific issues on behalf of some or all of the chiefs in the society can be granted to anyone. ... It is only in this context that jurisdiction can be asserted beyond the House and Clan." (pp.18-19).
The Gitksan-Wet'suwet'en cite various problems they have in dealing with the Canadian justice system, such as its specialized bureaucracies, the emphasis on punishment and revenge rather than rehabilitation, and its individualized notions of responsibility. In contrast, the Gitksan-Wet'suwet'en emphasize law in the general context of social relations. Responsibility is laid upon the offender's House rather than on the offender alone, and the emphasis with respect to "sentencing" is on compensation and the restoration of harmony.
On the other hand, the Gitksan-Wet'suwet'en note that their communal health is substantially less than would be desirable. Still, the authors state that their society's core has not yet died; the Gitksan-Wet'suwet'en believe that they have survived sufficiently intact to begin regrowth and renewed cultural development. Nonetheless, the implication of their situation is that implementation of their vision of aboriginal justice will require an extended committment. In this regard, their proposal seems to have a strong sense of direction, and appears based on an understanding of contemporary strengths and weaknesses.
"It is recognized that in many areas there cannot be a simple switch from the imposed state system to indigenous self-government. The acute social crisis in which the people find themselves together with external cicumstances much changed since they last exercised complete jurisdiction, demand a careful thinking through of how social repair and control of anti-social behaviour is to be accomplished." (p.27).
They suggest professionals will be needed, but that these people must come under the authority of the House chiefs; worker contracts could be developed which allow the integrity of the Gitksan-Wet'suwet'en system, while not undermining or threatening the integrity of professional ethical dicta. The four priority areas the proposal identifies are (1) assault; (2) spousal abuse; (3) rape; and (4) child sexual abuse. The routes they propose to deal with these problems involve (1) use of diversion provisions already existing under the Young Offenders Act; (2) a collaborative and egalitarian sentencing advisor process involving 2 or 3 community members and a judge of the Provincial court system; (3) parole advisors; and (4) alternative dispute resolution processes.
The specifics of the proposal seem well considered, with an estimated cost of approximately $2 million over a three year period. Early monies would go to the computerization of genealogies (a central element in identifying who one's 'relevant' family members are for any given action), developing worker contracts, negotiating concrete details with provincial authorities, and training those who will be involved. Education would go in both directions, i.e., educating provincial officials about Gitksan-Wet'suwet'en justice, and educating the Gitksan and Wet'suwet'en about the province's system. Implementation and monitoring would be in place by the third year of the project.
This is not to say that problematic issues would not surface. Indeed, the authors seem aware of several potential problem areas. For example, they note that the western tradition emphasizes individual rights, while the Gitksan-Wet'suwet'en attempt to balance individual and collective concerns. Accordingly, some areas of tension might arise, one example being concerns about due process. The authors suggest that in recent years in the Canadian justice system, family issues have been dealt with differently by giving greater family input; in turn, therefore, they suggest that the "nuclear" family emphasis of western law should be extended to a the extended conception of family that is meaningful to the Gitksan-Wet'suwet'en, and that the applicability of these principles should be extended to both criminal and civil domains.
All things considered, the model for indigenous justice which the authors propose would appear emminently achievable, and their proposals would not appear to require any changes in legislation to be introduced. Although areas of prospective tension are acknowledged, the problems do not appear insurmountable, and the result would distort neither the Gitksan-Wet'suwet'en nor Canadian systems of governance. Indeed, the authors suggest their model may have applicability to other aboriginal groups, as well as to many non-native rural communities (Gitksan-Wet'suwet'en Education Society et al, 1989).
Justice Among the Mi'kmaq
Unlike the Gitksan-Wet'suwet'en, the Mi'kmaq of Nova Scotia have not, to my knowledge, articulated a specific proposal to implement a system of aboriginal justice. Instead, the implementation of aboriginal justice is seen within the broader context of M'kmaq self-determination. In that regard, several descriptions of traditional Mi'kmaq justice are available (e.g., Denny, 1992; henderson, 1992).
Denny decribes some of the basic principles of Mi'kmawey (i.e., the Mi'kmaq way). He notes that Mi'kmaq customary law is called habenquedouic, which is translated as "he did not begin it; he has paid him back; quits and (is) good friends" (p.104). Similarly, henderson (1992) describes that
"The habenquedouic law of the Mi'kmaq is based on a tort principle of criminal law. It embodies the principle that he or she did not begin the offence; he or she has paid the aggrieved party back, and everyone quits and becomes good friends. The guilty one, even in killings, can repent his or her fault and makes satisfaction by offering presents and other suitable atonements to the aggrieved party. The idea of crimes against the sovereign or society was unknown to the Mi'kmaq law." (p.53).
For Denny (1992), the basic principles of habenquedouic are several. Further to henderson (1992), Denny notes that "Order is a matter of kinship, education, and personal self-control. ... Aggressiveness is considered wrongful and contrary to human dignity." (p.103). Similar in some ways to the Gitksan and Wet'suwet'en, conflicts and "crimes" were not considered "public" wrongs, but rather were private matters for the consideration of the relevant families. Indeed, "Coercive institutions [were] generally absent, if not vigorously opposed" (p.103), and families would normally iron out conflicts among themselves. A "satisfactory" resolution occured when conflict was terminated, and harmony restored: "Harmony, not justice, is the ideal." (p.104). Denny (1992) summarizes by saying that "Customary law is a process of reconciliation based on shared examples or models of conduct" (p.104); resolution is arrived at consensually through social interaction, with the only binding obligations being those which arose with the consent of all relevant parties.
Denny's proposals for the Mi'kmaq are that Mi'kmaq tribal courts should be created, with exclusive jurisdiction on their lands. He asserts the system should also be sufficiently autonomous so that the Mi'kmaq would be able to use their own laws, and borrow and apply, or ignore, any of the Criminal Code as they saw fit. Denny (1992) also asserts that it should be the Mi'kmaq who have the right to chose whether extradition to the Provincial courts is appropriate, whenever Mi'kmaq citizens are involved as accused. Mi'kmaq who get in trouble off the reserve would be tried in federal rather than provincial courts.
Unlocking Aboriginal Justice
The Gitksan-Wet'suwet'en and the Mi'kmaq conceptions of justice described above are by no means exhaustive of aboriginal conceptions of justice, although they do incorporate many of the attributes that are typical of many traditional aboriginal justice systems. Their inclusion offers the reader some more concrete examples of the aspirations of at least two First Nations, rather than leaving the discussion at the level of assertion of abstract general principles. But if the Gitksan-Wet'suwet'en and the Mi'kmaq are interested in pusuing their own brand of aboriginal justice, then what is stopping them?
Impediments to the Development of Aboriginal Justice Systems
Lack of Interest?
One prospective impediment that can be dispensed with quickly is the possibility that the Gitksan-Wet'suwet'en and Mi'kmaq are unique among contemporary First Nations, and that other First Nations may not be interested in the development of aboriginal justice systems which embody traditional aboriginal concepts of justice. This is clearly not the case.
The Head Chief of the Assembly of First Nations, Ovide Mercredi, has gone on record to state the desirability of such systems (see Law Reform Commission, 1991, p.13), as have numerous other aboriginal leaders and their representatives (e.g., Bellegarde, 1991; Joe, 1991; Monture-Okanee & Turpel, 1992). Interest is also evident in aboriginal justice projects which have been created within the accomodational framework, but which are seen by the aboriginal participants as prospective stepping stones to full-fledged aboriginal justice (e.g., see Tennant, 1992a, regarding the South Island Project). And I have yet to hear or read of any aboriginal leader arguing against having the choice of developing such a system, in the general context of further elaborating aboriginal self-determination.
A second possibility is that separate aboriginal justice systems cannot be developed simply because the law, and, in particular, the Constitution, might somehow preclude it. Considerable legal opinion has been amassed at this point regarding possibilities for a separate aboriginal justice system, with the conclusion that there is nothing in Canadian law which would preclude such developments (e.g., see Hamilton & Sinclair, 1991; Law Reform Commission, 1991).
Certainly there would seem to be no impediments because of current constitutional arrangements respecting federal-provincial responsibilities (MacKay, 1992). Prospects for aboriginal justice systems are also consistent with all treaties which have been signed with aboriginal leaders thus far (Wildsmith, 1992); are easily construed within the fiduciary responsibilities of the federal government with respect to ensuring the continuing vitality of First Nations (Lyon, 1992; Macklem, 1992); and would also seem a virtually recommended course of action given international agreements like the First Covenant, which acknowledge the rights of "peoples" to self-determination (Sanders, 1985, 1992a, 1992b). Many would argue that there could be no more desirable first step in a process of "de-colonization" (Jackson, 1992).
Other worries may exist about the consequences of enduring multiple justice systems in the country -- would it not create a jurisdictional conundrum? Numerous observers suggest that it would not (e.g., Jackson, 1992), noting that Canada already exhibits legal pluralism in its incorporation of the Civil Code of Quebec. It is a state of affairs we live with daily, and is institutionally validated and supported by the Constitutional arrangement which guarantees three seats on the Supreme Court of Canada to judges from Quebec who have experience with that Code. This precedent for legal plurality, and its legal validation in the structure of the Supreme Court, would suggest that similar possibilities are open to Canada's third founding nation, which is notably the only one of the three that can call these lands their homeland. Indeed, it seems a virtual travesty that the multitude of First Nations who governed these lands since time immemorial have no place whatsoever in the contemporary institutional structures of the country. With respect to legal considerations, therefore, change of the sort discussed herein would seem to be purely a question of the political will to carry it out (MacKay, 1992).
Thornier Legal Issues: The Charter
Charter considerations are important in several respects, particularly insofar as many aspects of aboriginal justice challenge us to reconsider our allegiances when faced with competing positive values. Much of this is embodied in the prospective concurrent recognition of individual and collective rights. Sanders (1991) discusses these, noting that the current Charter manifests an allegiance to the western liberal tradition of individual rights. At its heart is a balancing of the interests of the individual and the state, as well as ensuring equality of treatment for all citizens, i.e., the right, as an individual, to be treated like anyone else, regardless of group membership. The same allegiance to individual rights is evident in the Universal Declaration on Human Rights, passed by the General Assembly of the United Nations in 1948 (Sanders, 1992a).
Weaver (1981) notes the allegiance of former Prime Minister Pierre Trudeau to such an individual conceptions of rights, as well as his aversion to collective rights, which he felt proferred "special" status, offered an artificial crutch to cultural groups which should be healthy enough to survive on their own, and encouraged a tyranny of the minority. Certainly that conception was evident in the Trudeau-Chretien White Paper of 1969 (see Weaver, 1981), which recommended the termination of Indian status (and was soundly rejected by all aboriginal groups), and is equally evident in the Charter of Rights and Freedoms which was formulated by the Trudeau government (D.Sanders, 1991).
The problem is that some individuals, and particularly members of distinct social minorities, are concerned as much with their cultural as their individual survival. It is fine for members of cultural majorities to argue "we are all equal" when their numbers allow them to control the social institutions as well as their agendae, thereby creating a tyranny of the majority.
"Cultural minorities seek more than the right of their individual members to equality and participation within the larger society. They also seek distinct group survival. Because economic and social forces, as well as state policies, tend to promote assimilation, the leaders of cultural minorities often look to the state for support. They seek either protection or autonomy as the means to ensure that their collectivities can survive and develop." (D.Sanders, 1991, p.370; my emphasis).
Such protection can come through formal recognition of collective rights, as is evident in the two more recent (1966) International Covenants to which Canada is signatory (i.e., regarding the rights of peoples to self-determination). Similar explicit and formal recognition has not been forthcoming domestically, the closest example perhaps being the failed constitional proposals of the 1992 referendum, which acknowledged the "inherent right" of aboriginal peoples to self-government.
Implicit recognition has been cited in two locations. First, the inclusion of the infamous "notwithstanding" clause of the Charter was seen as a way of acknowledging the collective rights of the francophones in the Province of Quebec (Sanders, 1991). Aboriginal groups do not have such access, however, although some unique arrangement as a third order of government may yet be granted. Second, many have argued that acknowledgement of aboriginal collective rights is implicit in section 35(1), which acknowledges the "existing rights of aboriginal peoples", since self-determination for aboriginal peoples is arguably an existing right (e.g., Ahenakew, 1985; Lyon, 1992; Macklem, 1992; Monture-Okanee & Turpel, 1992; Sanders, 1991).
The limits to tolerance are challenged when the minority collective decides to protect a practice which conflicts with our notions of individual rights. Certain aspects of traditional aboriginal justice, for example, are seen to conflict in this manner. Sections 7 to 14 of the Charter offer citizens an array of protections from unreasonable governmental incursion. One affirms the right to avoid self-incrimination, for example, while aboriginal traditions require one to give an account of oneself, and to accept responsibility for the effects of ones actions. Similarly, another section guarantees an impartial trial, while justice in the traditional aboriginal setting is more likely to have been sought through non-adversarial, consensus-oriented discussion (e.g., Jackson, 1992; Monture-Okanee & Turpel, 1992; Sawatsky, 1992). A third section guarantees that persons will not be subject to unreasonable search and seizure, but the Coast Salish, for example, utilize the process of "grabbings", where an "offender", at the instigation of an Elder or family member, can be grabbed against his or her will and taken to the longhouse for healing (Tennant, 1992a).12 What safeguards, if any, should be imposed on that practice, or is that question a matter solely of concern to the aboriginal community?
Other considerations are easily imagined. What if traditional aboriginal justice involved sentences of death, or violent practices such as spearing? What if the practice in any given First Nation did not recognize sexual equality? As Sanders (1991) notes, "The more difficult cases involve minority cultural practices that violate highly valued human rights norms, such as life and health, sexual equality, and nondiscrimination." (p.384)
The question of what, if any, Charter requirements might be imposed a priori upon aboriginal systems of justice, is a fascinating issue whose complexities can only be hinted at here. Hamilton & Sinclair (1991) argue that First Nations governments must have carte blanche (as a right, not simply 'as delegated') to create a system which embodies their own integrity. They also argue against having aboriginal justice systems subject to the Charter, given its antipathy with many native values, and emphasis on individual rather than collective rights. They do, however, leave the door open for a subset-Charter (i.e., choose where applicable), or the entrenched right of First Nations to implement the 'notwithstanding' clause, or the creation of a unique 'Aboriginal Charter of Rights' (see also Jackson, 1992; Ronnenberg, 1991).
Legal analyses of constitutional requirements in this regard suggest that the most important aspect to be considered is the right of appeal. In that regard, Macklem (1992) reports that Aboriginal peoples would have to argue the equivalent of a "notwithstanding" position, or would have to provide an "opting out" alternative to individual aboriginals who might wish to be tried in the Euro-Canadian courts.
"If, for example, a tribal court system is developed that deviates from Anglo-Canadian norms of criminal procedure, it may run the risk of infringing constitutional rights of an accused. By providing an accused an option to have his or her case heard in provincial court, or by providing for a subsequent appeal to the provincial court system, the legislature may increase the chance that the judiciary will accept the initiative as demonstrably justified under s.1." (p.298).
The main problem with this, however, is that while such an appeal mechanism may appease Euro-Canadian interests, one might speculate that it would have little appeal for aboriginals who have been arguing for separate aboriginal justice systems at all levels, and not just entry level adjudication. What improvement is there if aboriginal justice systems are merely made subservient to Euro-Canadian Courts of Appeal? Two alternatives present themselves. First, prospective aboriginal justice systems might include aboriginal venues of appeal in their design, i.e., Aboriginal Courts of Appeal, or an Aboriginal Supreme Court. A second alternative would be to revise the current appeal courts to include some mandatory level of aboriginal participation, in the same manner that the Supreme Court of Canada now guarantees three seats to members who have experience in the Quebec Courts.
Though such alternatives seem reasonable in many respects, one wonders how many strings might be attached before one is no longer promoting the existence of "aboriginal justice", but rather, creating little more than the contemporary equivalent of the Indian Act, with assimilation once again the objective, i.e., something akin to the attitude that "we will let you have a justice system to run however you choose, as long as you run it according to our rules."
It might be argued that it would be imprudent to ignore the overall weakness of aboriginal governments at this time, given a certain amount of structural degeneration at the hands of an assimilation-oriented federal government, particularly through the Indian Act, for more than a century. The legacy of Canada's assimilative strategies has been considerable, particularly with respect to the Canadian government's "success" at creating conflict where, before, none would have existed.
Egalitarian social relations among native men and women have degenerated over several generations of patriarchy imposed by the Indian Act, and the colonials who implemented it (see Monture-Okanee & Turpel, 1992; Payne, 1992). The exclusionary "citizenship" rules, which stripped native women who married whites of their Indian status has further divided aboriginal First Nations, many of whom had traditionally bequeathed titles and responsibilities through matrilineage (Greschner, 1992; Joseph, 1991; Wilson, 1985).
The most extensive consideration here has come with respect to the role of women in aboriginal governance, where First Nations' womens' groups, such as Native Women of Canada (NWC), argued during the 1992 referendum debates, "...that women are excluded from native organizations, and that the existing power structures and process do not encourage women's participation." (Hammersmith, 1992, p.53). After explaining that "NWC is an umbrella group that includes status and non-status Indian women and Métis women, and representatives of provincial native women's groups." (p.53), Hammersmith further explains that the "NWC argues that native women belong to largely dysfunctional nations in which justice and equity are practically non-existent." (p.53). The problem is that "Native women belong to aboriginal nations that have been shaped for three or four generations by the paternalistic provisions of the Indian Act." (p.53).
Traditional forms of governance have also been undermined, by a century of funding Band Councils, with the result that, in many communities, Band Councils and more traditional structures now conflict over funding and tribal policies (e.g., Hornung, 1991; Mathias & Yabsley, 1991; Tennant, 1990; and York & Pindera, 1991). Hammersmith (1992) adds that further difficulties arose from the days of the residential schools, when aboriginal children were taken from their families, and not treated well, thus creating generations of dysfunctional people. It also made school a very undesirable place to be. Some made it through the educational system, however, and those people have now become the new, elected Indian elite.
"They know what the game is, so they play that game. And the federal government takes advantage of this. It only recognizes certain people as spokespersons -- those who are elected and have adapted to a system the government has concocted and imposed upon us. For Métis people, it is municipal governments. For status Indians, it is band councils. When you ask the band councils, the chiefs or the mayors to change something, they first have to get permission from the people who give them funding." (Hammersmith, 1992, p.55).
Hammersmith also notes that these new leaders are paid leaders -- a status that did not traditionally exist. One formerly took part in the leadership of the community out of a sense of role or duty. "The result is nepotism, which our political leaders have learned very well from the wider governments." (p.56). The worst cases are depicted as sellouts -- essentially Department of Indian Affairs employees, passing on the white man's message, and accomplishing nothing for their people.
It is also the case that tribal Elders, who were once at the heart of aboriginal governance, are now in a more precarious position. The status of tribal elder was an achieved status, gained by virtue of demonstrations of wisdom in dealing with matters such as governance and justice, but recall that those opportunities were constrained, if not denied. by the forced creation of Band Councils, and the imposed paramountcy of a foreign justice system (Jackson, 1992; Ross, 1992). Accordingly, tribal elders have seen their status decline, and with it, their influence. In his studies among the Inuit in the Canadian Arctic, Griffiths (personal communication) has indicated that, in some communities, tribal elders are in fact the primary victims, taunted ad nauseum by younger offenders.
The situation is captured by an analogy included in Unlocking Aborginal Justice (Gitksan-Wet'suwet'en Education Society et al, 1989), which warrants repeating here. The image is of a person who falls into an icy river, and begins to endure its hypothermic effects. Arteries begin to shut down as the body attempts to save what it can, trying at least to keep its core intact. If the numbing cold continues, the whole body will die; if removed and properly treated, a process of renewal may begin, and the body as a whole can recover. The person represents aboriginal peoples, while European contact is the icy water in which they have been submerged.
Certainly it is in everyone's interest for the indigenous peoples of this continent to flourish. But one cannot help but wonder whether some instant recognition of aboriginal governance would involve throwing a lead weight to a drowning person. Would it be helpful to burden aboriginal peoples while they are still in the water? Or should one concentrate first on getting them ashore? The latter would seem to make more sense, but does it not provide the basis for even greater paternalism, i.e., the attitude that "We will give you government when We think you are ready"?
Hammersmith (1992) is among those to argue that, notwithstanding these dilemmas, responsibility for First Nations governance must lie with First Nations. Hammersmith notes that change for aboriginal peoples must come from within aboriginal communities, and that it would be a mistake to look for the feds to place "strings" on further aboriginal autonomy, e.g., "We recognize your nationhood but we don't like the way women are treated. So we will impose a solution on you." (p.57). "Canada should not be asked to solve the problem: the result would be just another version of the Indian Act. ... This is just the continuation of a policy of genocide." (p.58). Greschner (1992) agrees with these assertions, noting that many policy makers have expressed the view that "...self-determination, which in the context of this study means aboriginal justice systems, cannot be permitted by the non-aboriginal Canadian government because aboriginal women would be left at the mercy of sexist aboriginal men." (p.339). Greschner argues that this is little more than a self-serving and politically expedient justification to do nothing, and/or to interfere, dressed in politically correct clothing. As Greschner (1992) stated, aboriginal policy dictated by non-aboriginals can hardly be called aboriginal self-determination.
Assimilative Pressures of Government Funding
I have often thought that the most powerful element of the European, and particularly the British, legacy, was its bureaucracy. Certainly the documentation that is at the core of bureaucratic functioning serves to create history, while denying it to others with an oral past (e.g., see Stanley, 1983; Wolf, 1982). Monolithic bureaucracies also seem very effective at dictating agendae by their very functioning, as is described by the Assembly of First Nations (AFN, 1991), who lament the nature of their interactions with the federal government.
The litany is an extensive one. With respect to land claims, for example, the AFN laments the asymmetry of control which exists over the entire process:
"...[T]he federal government sets itself up as the judge and jury in dealing with claims against itself. It sets the criteria, decides what claims are acceptable, and controls the entire negotiation process, including funding support. Clearly, in the democratic world there are few examples of such a grievance procedure being so totally controlled by one party in a dispute." (p.233).
Government can also take advantage of its position to unilaterally define (and change) the negotiational turf, as the AFN suggests the government did in the 1980s with respect to claims settlements. At base, the government sets the timetable, and can deal with matters at its leisure. Regarding comprehensive claim settlements, for example, the AFN notes that
"If by chance a comprehensive claim is accepted, it is added to a waiting list. It is federal policy that only six claims can be negotiated at any one time. ... This means that claimants on the waiting list have no way of protecting their rights and interests while waiting their turn at negotiations. At the present rate the wait could take over fifty years or more. ... The federal government maintains that participation in the process is voluntary and that First Nations cannot be forced into agreements. In reality, the only alternative to the process is the court system, which is expensive, adversarial in nature, and without any assurance that the federal government will honour the court's decision." (AFN, 1991, p.238).
To this, the AFN add that
"Another means by which the government controls the negotiation process is through financial support to claimants. Loan funding is provided to cover negotiation costs ... but the use of these funds is very closely monitored. Any use of loan funds deemed inappropriate by federal officials may result in reductions or suspension of funding. ... The government's contention that loans are interest free is inaccurate. All loans become interest bearing upon the approval of agreements-in-principle. ... The experience of claimants has been that upon final settlement repayment of loans and interest is calculated and scheduled into the compensation package in a manner more advantageous to the federal treasury than the claimant." (pp.238-239).
Funding sources can also wield control by the timing associated with payments, and the uncertainty of whether agreements or contracts will be extended (Jackson, 1992). Tennant (1992a), for example, notes that although the federal government funded the South Island aboriginal justice project, the funding committment was solely for a two year trial period; longer term planning, on the other hand, has been thwarted because of the ambiguity of knowing whether funding will proced beyond that point.
And finally, the asymmetry of resources allows the federal government to make unilateral judgements that might or might not be agreed to by an independent third party, let alone the First Nations who are their object. As the AFN describe in the context of claims settlements,
"...[M]any of these problems exist due to one important aspect of the policy; it is administered by DIAND, with legal support from Justice, which puts the federal government in a conflict of interest. The fact that the federal government has appointed itself judge and jury in dealing with claims against itself further erodes any credibility this policy might ever have had among aboriginal peoples and is contrary to the principles of natural justice. It is basically an extension of the racist and paternalistic attitude towards aboriginal peoples that is characteristic of Canada's colonial traditions." (p.244).
While the AFN are probably correct when they conclude that the current situation "...does little to enhance the present government's desired image of Canada as a champion of human rights" (p.246), the federal government's approach continues to be characterized by the rules of hardball politics. But there are other, more subtle, ways that bureaucracies can influence events. As the Gitksan-Wet'suwet'en recognize in their proposal entitled Unlocking Aboriginal Justice (Gitksan-Wet'suwet'en Education Society et al, 1989), one way bureaucracies exert assimilative force is through the pressure that exists to have a compatable structure in order to "talk" with and to the bureaucracy effectively. Accordingly, more decentralized societies, or First Nations which view matters like justice from a more holistic rather than specialized perspective, may find themselves in a bureaucratic void of mismatching structures.
It is interesting to note, for example, that despite the quality of the Gitksan-Wet'suwet'en proposal on Unlocking Aboriginal Justice (Gitksan-Wet'suwet'en Education Society et al, 1989), that proposal has never been funded by either provincial or federal authorities. A major reason for this is apparently that their proposal does not "fit" neatly into any particular bureaucratic niche. As the authors recount in a supplementary report (Gitksan-Wet'suwet'en Education Society et al, 1990),
"We anticipated, correctly as it turned out, that the proposal would not fit within existing guidelines for government funding programs. The provincial government response has been coordinated by the Ministry of the Attorney General. Three meetings have been held with ministry committees but their mandate has been more to ease delivery bottlenecks within the existing justice system than to facilitate structural solutions.
For their part, federal ministries referred the proposal to the Department of Indian Affairs which declared justice to be a self-government issue that could not be acted upon until the current self-government negotiations with the Gitksan and Wet'suwet'en Chiefs have been concluded.
Government institutions find it difficult to comprehend and interact with decentralized societies. Two different traditions with two different ways of righting wrongs are attempting to deal with the same problems. Both perspectives have their strengths but require detailed work to integrate and apply them." (p.3).
With no small irony, the authors also include a BC Court of Appeal decision for a man charged with the theft of two pick-up trucks. Though only 22, the man had already experienced a history of sexual abuse, as well as an extensive prior record of property crimes. The BC Appeal Court apparently initiated a query back to the Gitksan-Wet'suwet'en community, wondering whether they could take a more active role in the man's rehabilitation, and perhaps preclude the need for what would otherwise be yet another step in an escalating series of incarcerations with no likely success in sight. The Gitksan-Wet'suwet'en responded by telling the judges of their proposal, its lack of success, and the consequent lack of structures they had to adequately deal with that particular offender's case.13
In 1993 (as I write this), we have seen more involvement by elders in the sentencing process in different jurisdictions in Canada (e.g., see Griffiths, 1985; Stuart, 1992), and a greater sensitivity to the need for community-integrated responses to criminal justice matters involving aboriginal offenders. Will First Nations like the Gitksan-Wet'suwet'en lose out because they have the continuing integrity to want to do it in a manner which is consistent with their traditional structures and future aspirations?
Conclusions: Constructing Aboriginal Justice
Aboriginal citizens of the First Nations of Canada are in a unique position among Canadians, and even among those with ancestral roots among the three founding nations of the country, to the extent that they are the one people of this country who can call North America their homeland. First Nations leaders have indicated their desire for recognition of their inherent rights to self-determination, which Canada has recognized to the extent of being signatory to the First Covenant concerning the rights of "peoples" to self-determination (Sanders, 1985, 1992a).
There is no end to the legal opinion that suggests that First Nations have a compelling case to put forth (e.g., see Clark, 1990; Jackson, 1992; Law Reform Commission, 1991; Lyon, 1992; Mackay, 1992; Macklem, 1992; Monture-Okanee & Turpel, 1992), and there is an equally compelling host of moral arguments which affirm that continuing efforts at assimilating or otherwise obliterating aboriginal peoples as peoples is beneath the dignity of an ostensibly free and democratic society that prides itself in having allegiance to the rule of law (e.g., see Berger, 1991; Boldt & Long, 1985a; Cassidy, 1991b, 1991c; Cassidy & Bish, 1989). Whether it is through the adversarial procedures of the courts, or through the more "civil" process of bilateral negotiation, First Nations people have shown by their actions for more than a century that they will continue their quest until they achieve what they have strong reason to believe is their legal and moral due.
The record of the Canadian government to date is not a positive one. Whether we look back to the efforts in the nineteenth century to squeeze natives out of their lands (e.g., Fisher, 1992), or to the efforts to ignore aboriginal rights in the hope they would go away (e.g., see the British Columbia experience in Tennant, 1991), or to the assimilative policies of "divide and conquer" embodied in the Indian Act, or the Trudeau-Chretien White Paper of 1969 which attempted to unilaterally extinguish aboriginal identity, or to the residential schools where Indians were taught to be ashamed of their identities and history, or to contemporary statements that attempt to continue the fiction that aboriginal rights somehow exist only at the whim of the federal government (e.g., see Siddon, 1991), the history of aboriginal-governmental relations is not a source of national pride. Each new generation of politicians seems interested in creating a "new relationship" with aboriginal peoples, then continues the assimilative and paternalistic policies and practices of the one before.
Though it has been said many times before, this paper will say again that what is needed is a significant change not only in the procedures and processes by which First Nations and the federal and provincial governments interact, but also in the very attitude which the federal government brings to the table. As Simeon (1991) states, the federal government must appreciate aboriginal self-government not as a threat to the Canadian federation, but as an opportunity. If there is a Canadian "image", it involves tolerance of different cultures, and the belief that we flourish through the diversity of our peoples. This paper is in part a call to live up to that image.
Cassidy (1991d) suggests that a foundation for working things out would be provided by governmental acceptance of two fundamental principles: (1) that Canada should actively show its new attitude by recognizing First Nations' peoples as one of the founding peoples of the country, and affirming their inherent right to self-government and self-determination, preferably in the Constitution; and (2) "Canada should not make unilateral policy decisions in relation to aboriginal peoples of this country." (p.132). Certainly some steps in this regard have occurred, for example, in the apparent willingness of the federal and provincial governments to acknowledge the "inherent right" of aboriginal peoples to self-government in the failed constitutional proposals of 1992.
Cassidy (1991d) continues by affirming that government should be partners with First Nations peoples rather than adversaries, beginning with an acknowledgement of Natives as full partners in Confederation. Indeed, it is ironic the extent to which the absence of Quebec from the constitutional fold has been a cause for national concern for more than a decade, while scant attention has been paid to the fact that aboriginal peoples have yet to be formally brought into confederation. Recognition of aboriginal peoples as one of the three founding nations should arguably be associated with some substantial participation in this country's major institutions.
Notwithstanding apparent governmental interest in promoting aboriginal self-governance, interested observers also acknowledge that the government is in an inherent conflict of interest to the extent that it has responsibilities to other than strictly aboriginal peoples (e.g., see AFN, 1991). This suggests that alternative structures may be considered to play an intermediary role between the interests of aboriginal populations, and those of government. Bellegarde (1991) suggests that an Office of Treaty Rights Protection be created. Analysts in the justice area have suggested more focussed entities such as an Aboriginal Justice Commission (Jackson, 1992), or Aboriginal Justice Institute (Law Reform Commission, 1991), which would be staffed largely if not solely by aboriginals, would have a significant and continuous budgetary committment, and whose jobs would be to be encourage the development of aboriginal justice systems, promote long-term planning, engage in training and evaluation, and so forth.
The danger in such a focussed enterprise is that it creates the sort of specialized structure that has plagued the Gitksan-Wet'suwet'en and other First Nations who desire a more 'holistic' approach to governance, and hence end up lost in the cracks between government departments and their associated mandates and budgets. If such Commissions or Institutes are created, the suggestion here is that these should exist within an umbrella Department of Aboriginal Affairs which would be prepared to show flexibility in the range of initiatives which are entertained and promoted.
Although this paper has argued that aboriginal interests should be acknowledged and promoted, it is also acknowledged that there are many thorny issues which await both the federal and provincial governments and aboriginal peoples. Indeed, these are legion. Who are the aboriginal leaders, and what authority do they have among the First Nations of the country as a whole, and within particular First Nations? One might point to Ovide Mercredi and the Assembly of First Nations at the national level, but not all First Nations recognize their authority, seeing them as a governmental creation of pan-Indian identity and a product of band council government imposed via the Indian Act. Within given First Nations, "traditionals" and "contemporaries" debate over the authority to be wielded by traditional and band council structures; in smaller First Nations, one occasionally sees the domination of a single family which may or may not represent the interest of their entire population, and where nepotism and favouritism run counter to the best of aboriginal traditions of complete participation and consensus decision-making.
The role of women in contemporary native life poses incredible complexity. In terms of aboriginal traditions, most sources suggest that aboriginal First Nations were marked by full equality, with patriarchy and male dominance introduced only with the advent of the Europeans, and institutionalized through the Indian Act (e.g., Greschner, 1992; Monture-Okanee & Turpel, 1992); others have been more critical and seen inequality even in the earliest days of the fur trade (e.g., Van Kirk, 1988). Whatever the distant past, several generations of Indian Act governance, and particularly the disenfranchisement of many women from Indian status because of the discriminatory provisions of the Indian Act regarding inter-marriage, have left many First Nations women without a voice, and clinging to the equality provisions of an otherwise non-Aboriginal Charter to ensure reasonable participation.
The material poverty of many reserves is also noteworthy, and the continuing dependency of most First Nations on governmental largesse regarding funding (with both explicit and implicit strings attached), means that appropriate internal controls, financial structures, and the ability to engage in long-term planning and development, have been sorely hampered. The irony is that this governmental largesse is with resources that arguably belong to the First Nations, and that government has provided a poor model in terms of how those resources might be effectively managed (e.g., see York, 1992, for discussion of items from the most recent Auditor General's report, showing Indian Affairs mismanagement of reserve resources, and failure to meet terms of compensation specified in negotiated agreements).
In yet another of the many ironies which characterize aboriginal-governmental relations, I would also draw attention to what may be one of the most subtly assimilative developments to have occured with the arrival of Christopher Columbus in 1492, i.e., the identification and construction of a class of people called "Indians". Notwithstanding general cultural differences that exist between those of aboriginal and European ancestries, the amalgamation of all First Nations into a class called "Indians" does great injustice to the diversity of peoples enjoined by that label.
Notwithstanding counter-examples like the Navajo with its population of around 200,000, most First Nations in North America are relatively small tribal groups. Indeed, when the first Europeans arrived on North American shores, there were several hundred aboriginal First Nations whose respective territories covered virtually all of North America. Nonetheless, to the early European explorers, all these inhabitants were homogenized in the category of "Indians", even though they belonged to eleven different linguistic groups (some of which have as much in common as Japanese does to Swahili), and possessed as much variety in cultures as is evident among the nations of Africa or Europe.
Several hundred years of treating these various First Nations as "Indians" has served to some degree to create a perception of homogeneity that did not exist, and to force a unity that may pose an uneasy alliance. An analogy would be to imagine an explorer landing on the shores of medieval France and finding a continent of people that came to be called "Europeans", even though to the Europeans themselves there were identifiable language and cultural differences between the French, and Italians, and Belgians, and Spaniards, and Portugese, et cetera. We understand the absurdity of asking "what do Europeans want?", because we understand that it is unlikely the diverse array of European nations would want any one thing. And yet many continue to ask what it is that "Indians" want, oblivious to their homogeneity, and their historical independence from one another.
How the aboriginal peoples of this country resolve the above conundra must be recognized as a matter of their own choosing. We may lament the racism which was shown to permeate Nova Scotia justice in the Donald Marshall Inquiry (e.g., see Mannette, 1992a), and Nova Scotians may demand change in the way they go about doing business, but we do not question the right of the duly constituted government of Nova Scotia to govern its internal affairs. Similarly, we may anguish over federal government practices, but we do not question its existence as our government. Notwithstanding the many difficulties which true self-government will bring because of divisions among and within indigenous First Nations, it would be similarly inappropriate for the federal government and non-aboriginal Canadians to attach strings to the recognition of aboriginal self-governance. This would represent little more than a new Indian Act, with non-aboriginal peoples once again having the audacity to believe that they know what is best for native peoples.
The appropriate role for non-aboriginal Canadians and their governments is not only to recognize the rights of aboriginal Canadians, as peoples, to self-government and self-determination, but also to refrain from either expecting or imposing unitary solutions which deny the rights of individual First Nations to make choices which reflect their own priorities. First Nations were and are incredibly diverse, as are the contemporary realities they occupy, and priorities they hold. Pan-Indian government is a twentieth century creation; although perhaps a necessary evil in contemporary political life, where the aggregation of critical mass seems a requirement for the mobilization of a political agenda, government should not require homogeneity in the solutions that individual First Nations derive.
Within the particular realm of aboriginal justice, the implications to the above are several. First, it is clear that the contemporary Euro-Canadian justice system has by and large completely failed in bringing justice to aboriginal peoples. Second, the analysis above suggests that aboriginal justice, at least in its traditional forms, is in many ways incompatable with the dominant Euro-Canadian model, to the extent that justice delivery within aboriginal communities must allow an appearance which differs radically from that in the dominant system. But third, the diversity of aboriginal First Nations must be acknowledged by allowing a diversity of arrangements to be made depending on the priorities and practices of individual First Nations. While First Nations like the Gitksan-Wet'suwet'en and Mi'kmaq may wish to pursue more traditional forms, for example [e.g., see Gitksan-Wet'suwet'en Education Centre et al. (1989) and Denny (1992), respectively], others may wish to pursue tribal courts, or an indigenization of the existing system, or be happy with things just as they are now.
Of course, it is also the case that aboriginal Canadians will not exist in a vacuum; notwithstanding recognition of their right to self-determination, aboriginals have no apparent interest in not being a part of Canada. Coordinated existence will thus be required, with consideration made for the division of jurisdiction. Regarding general governance issues, for example, Joe (1991) suggests that there should be lands over which the relevant First Nation would have complete control (i.e., reserve lands), but also other areas where they would have input over development (e.g., traditional hunting lands that are now officially in the hands of the Crown), plus other areas where they would have input purely because they would be impacted upon by some sort of development elsewhere.
In the realm of aboriginal justice, he suggests that First Nations have complete power to administer justice, which he would extend not only to First Nations citizens, but also "...those who have violated First Nations laws within the domain of that First Nation." (p.70). As has been the case in the United States, cases will most certainly arise where jurisdictional boudaries are tested in court, e.g., where a non-aboriginal who is alleged to have offended on aboriginal land asserts his or her right to be tried in a provincial court, and/or where an aboriginal person argues that he or she does not wish to be subject to aborinal law, or wishes to contest the result of an aboriginal dispute resolution (e.g., see Jackson, 1992), and/or where an aboriginal accused in urban Vancouver demands to be tried by an aboriginal justice.
Despite differences between traditional aboriginal and contemporary Euro-Canadian justice, the common ground they share should also be recognized. Indeed, the flourishing concurrent systems may well have much to offer one another.
As Jackson (1992) argues, some of the central tenets of aboriginal justice are now receiving attention in the dominant justice system, e.g., under the title of "alternative dispute resolution mechanisms" and "mediation". And the model of justice offered by the Gitksan and Wet'suwet'en, for example (see Gitksan-Wet'suwet'en Education Centre et al., 1989), may well hold useful implications for other smaller, non-aboriginal communities. In other domains, some observers have argued that we may have much to learn from aboriginal cultures regarding, for example, environmental practices (e.g., see Ross, 1992); certainly the indigenous peoples were successful for millennia in practicing sustainable development. Diversity is strength; we will all benefit from an acknowledgement of aboriginals' central role not only in Canadian history, but also in our collective future.
1. Reprints of this article may be obtained by contacting Ted Palys at the School of Criminology, Simon Fraser University, Burnaby, BC, Canada, V5A 1S6, or via Internet at PALYS@SFU.CA.
2. I feel uneasy noting "contact", since it is clearly a construction open to definition by whomever writes the history. For example, reports exist of visits by Asians to the west coast more than 1,500 years ago. Sewid-Smith (1991) states that an official yearbook of the Chinese Empire tells of the return of a Buddhist priest named Hoei-shin, who had apparently spent the years from 458 to 499 A.D. in the area around what is now known as Vancouver. We have also heard of visitations as long as 900 years by the Norse to the east coast. Nonetheless, European historians generally date "contact" between aboriginal and non-aboriginal populations in what is now called Canada as having begun with the visit of Giovanni Caboto, a European, of course, to what is now Newfoundland in 1497, i.e., slightly less than 500 years ago.
3. I state "documentary" authority here because this is the level at which most court argument regarding aboriginal rights to self-determination occurs. This places us in the realm of international law (e.g., Green & Dickason, 1989; Slattery, 1991), which includes the full history of Canada and its ancestors' relations among nations, including any International Covenants to which Canada is signatory. This is often interpreted to be a history written largely by Europeans, i.e., that developed among the European nations who were actively involved in exploration and colonization from the Crusades onward.
Other sources are also cited. Many native speakers emphasize that it is the Creator who gave aboriginals the stewardship of this continent, for example, with authority for self-determination deriving directly therefrom (e.g., see Ahenakew, 1985; Boldt & Long, 1985a; Cassidy, 1991c). Natural law is also cited, since one can question the determinative aspects of international law -- Proclamations by European Kings can hardly be considered binding on leaders of North American First Nations who were not signatory. Believing otherwise gives any beligerent authority the power to write its own rules (e.g., see Slattery, 1991). The Creator is addressed only tangentially from this point onward in the paper. Justifications on the basis of international law and/or natural law are discussed further below.
4. Clark (1990) reports that Canadian judges often look to the United States for precedents, believing that the two countries are similar in both (a) having once been subject to the Royal Proclamation; (b) having British ancestry to their legal systems; and (c) now possessing sovereign authority over their respective indigenous populations. He argues they are mistaken in doing so, however. The American Revolutionary War served to disrupt the inheritance of British influence; from Clark's (1990) perspective, this made the United States a new lineage with its own sovereign authority, and therefore not necessarily subject to earlier Proclamations by the authority they rejected. In contrast, the loyal Canadians followed colonial authority in their progression to independence, and hence were subject to all inherited encumbrances, including those expressed in the Royal Proclamation.
5. Mr. Justice Louis-Philippe Pigeon agreed that B.C. law stated the province could not be sued without their consent, and noted that the natives had not sought the province's consent before taking them to court. He did not comment on the merit of the Nisga'a claim per se.
6. As Fisher (1992) has noted, however disagreeable MacEachern's decision might be, the fact remains that it was made in 1991 by a Chief Justice in an important case that has the potential of exerting significant influence in future cases, shows the power of "standard" histories in reflecting and serving assimilative interests which show no respect for aboriginal beliefs and traditions.
7. The term "robber baron" is chosen in recollection of W.B. Henderson's (1992) statement that "The law has had great difficulty dealing with the doctrine of aboriginal rights. Whereas lawyers and the courts tend to view aboriginal rights as a question of law, native people view the issue as one of justice, having to do with what is right, fair, reasonable, or equitable. ... The law is an imperfect device for dealing with questions of justice; but St. Augustine wrote many centuries ago that without justice the state is nothing but a robber band. Most people who have not gone to law school would be surprised to learn how little the law is actually concerned with justice. The law is primarily concerned with problem-solving." (p.222). Later, the author notes that "The judge is sometimes in the position of a person doing a crossword puzzle who, lacking the right answer at the end of the puzzle, settles for a word that seems to fit." (p.223).
8. Tennant (1992a) explains that "S'ul Hwen" is the Salish term for what others might call an "elder"; the "glottal" stop between the two words makes a 'k' sound, so that the pronunciation is something like Sul-kwain.
9. Hamilton and Sinclair (1991, p.275) state the two different numbers appear in two different Bureau of Indian Affairs (BIA) reports. The lower figure of 91 [from Indian Reservation Criminal Justice Task Force Analysis, published by BIA (1975)], notes 16 traditional courts, 17 CIOs, and 58 tribal courts. If the general ratios of the different types of courts reflect the situation in 1975, it suggests that the biggest increases in the numbers of aboriginal courts have come in the category of Tribal Courts, which increased from the 58 noted above, to 108 a decade later.
10. One is on touchy ground with this sort of assertion, since there was considerable variation among First Nations in the specifics of how justice issues were resolved, and any talk of some "characteristic" aboriginal justice necessarily errs in imposing homogeneity. Notwithstanding such variation, authors in the literature suggest that this represents more in the realm of variations on a theme, as is true also among European legal traditions. The central themes of the two aggregates vary so widely, however, that it is meaningful to talk about general differences between them.
11. In and of itself, this inability to adequately translate the concept of guilt into aboriginal languages is extremely problematic, and can obviously lead to great misunderstanding to the detriment of the aboriginal accused. Monture-Okanee and Turpel (1992), for example, note a revelation of the Donald Marshall Inquiry to the effect that many Mi'kmaq translated the question "Do you plead guilty?", to mean "Are you being blamed?" One look around the courtroom would be more than adequate to suggest the answer was "Yes".
12. This may sound rather like kidnapping, though it also shares features with arrest. In both cases, a key question concerns whatever safeguards are in place for such eventualities, and the source of authority of the person instigating the grabbing, as well as the person doing it.
13. Incidentally, to compound irony upon irony, one of the three BC Court of Appeal Justices who made the sentencing decision alluded to above was the same Justice who later concluded in the case of Delgamuukw versus The Queen (1991) that the Gitksan-Wet'suwet'en had nothing in their traditional societies which might be called "law" or "justice".
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