Thinking Through Access to Justice in Aboriginal Communities

Catherine Bell leads a discussion at an IPinCH-sponsored event in the Yukon, Can

By Nicole Aylwin

It’s been just over a year since I joined IPinCH Steering Committee member Catherine Bell in the Yukon to assist with the IPinCH-supported Yukon First Nations Heritage Values and Heritage Resource Management community-based initiative.  


During my visit, I met our Yukon First Nations partners and I listened to them tell their stories and share their experiences regarding their attempt to recover their cultural heritage values. Not long after, I began a new job with the Canadian Forum on Civil Justice, a non-profit that has a mandate to study and help improve access to justice in Canada. As I began this new position, I couldn’t help but consider the relationship between cultural heritage values and access to justice. 

Being able to access the justice system is a fundamental part of democratic societies. But what does cultural heritage have to do with access to justice? A lot, it turns out. Justice systems should reflect the cultural values, traditions and ideologies of a community – this is what makes a justice system legitimate; it is what allows people to see themselves reflected in the system, and what allows them to feel that the system is accessible. 

During colonization, however, First Nations communities had a justice system imposed on them – one that did not reflect their values, traditions and beliefs. During this period, First Nations cultural values and legal systems were delegitimized and systematically targeted for elimination. Ultimately, First Nations communities were denied the right to define justice, and the laws and policies that produced it, for themselves. Over time, as languages were lost and stories went untold, the cultural traditions that contained the blueprints for First Nations justice systems slowly eroded.

As self-governing communities, our Yukon First Nations partners have begun the daunting task of rejuvenating their cultural values and traditions. They have also begun thinking about how to turn these often non-tangible values (like balance and respect) into laws and policies that reflect First Nations traditions and protocols. However, they have faced challenges and setbacks as they have attempted reconcile their policies and laws with an often very inflexible Canadian justice system. After meeting our Yukon First Nations partners, and being privileged enough to participate in some of their work, I have been inspired to think more deeply about this relationship between cultural heritage and access to justice. Since that first visit to the Yukon, I have participated in two important events that have helped me do so. 

The first was a one-day workshop I organized in collaboration with Catherine Bell. The workshop was co-sponsored by the York Centre for Public Policy and Law, IPinCH and the Canadian Forum on Civil Justice. This workshop explored how community led policy-making could facilitate access to justice in self-governing First Nations communities. It drew together Yukon First Nations representatives, policy makers and legal experts to discuss some of the successes and challenges that self-governing Yukon First Nations have faced as they attempt to develop and implement law and policy that derive from local practices and values. One of the central challenges explored was how to reconcile value-based Yukon First Nations policy with the westernized legal and policy frameworks of the Territorial and Federal governments.  

The other event was a recent conference held in Toronto, titled Encounters in Canada: Contrasting Indigenous and Immigrant Perspectives, where I gave a paper arguing that to deliver “access to justice” to First Nations communities in Canada, these communities must be provided with the resources and means to create policy and legislation that is based on self-determined cultural values. These laws and polices must be developed by the communities themselves in accordance with First Nations legal traditions.

Together these two events have allowed me to begin a dialogue with others interested in exploring the complex relationship between access to justice and cultural heritage. 

Photo: Catherine Bell leads a discussion at an IPinCH-sponsored event in the Yukon, Canada (A. Bunten, used with permission).  


Nicole Aylwin is Executive Officer/Project Coordinator at the Canadian Forum on Civil Justice and an IPinCH Associate. 

The article was featured in the IPinCH Newsletter, Vol. 5 (Fall 2013).