Ellis, Jaclyn (2009) "First Nations Justice Initiatives in Canada," Totem: The University of Western Ontario Journal of Anthropology: Vol. 17 : Iss. 1 , Article 12.

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First Nations Justice Initiatives in Canada
Jaclyn Ellis
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First Nations Justice Initiatives in Canada
Keywords
First Nations, justice, Canada, legal system
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TOTEM 37
First Nations Justice Initiatives in Canada
Jaclyn Ellis
Reports on the over representation of
First Nations people in the Canadian and
American legal systems have been widely
publicized in the media. In Canada this has
led to a questioning of the legal system and a
push to have alternative, traditional forms of
First Nations justice recognized in the hope
that they will lessen the number of First
Nations people in prisons and prevent
recidivism. Traditional forms of addressing
crimes are also influencing non-First
Nations concepts of justice and have
inspired new approaches to justice such as
the restorative justice movement.1 There has
been, however, pressure to standardize First
Nations justice initiatives. As
standardization does not take into account
the great variety of cultures and values
between and within First Nations
communities it can only be detrimental to
the effectiveness of First Nations justice
initiatives. If alternative justice initiatives
are to be effective, the diversity of values
held by community members must be taken
into account and each initiative must be
developed with input from the community in
which it is to be implemented.
While the over representation of First
Nations people in the Canadian legal system
has been linked to systemic injustice,
racism, and the social-economic problems
associated with colonialism, it has also
revealed a conflict between traditional First
1 Restorative justice is a philosophy which views
punishment as an inadequate method of addressing
crime. It has resulted in a variety of grassroots
programs which encourage active participation of the
offender, victim and community in ensuring offender
accountability, support for the victim, restoration of
harmony in the community, and the prevention of
future crimes. Generally such programs are holistic
and focus on the future (Gilman 2009).
Nations values and beliefs about justice, and
the beliefs and values which the Canadian
legal system is based upon. First Nations
justice systems generally view offenders as
good people, who are in need of healing or
guidance. They often include traditional
healing practices. The community is
encouraged to consider the circumstances
which led to the commission of a crime and
alter them in hope that future crimes can be
prevented. This usually includes restitution
to the victim (Ross 1992).
The Canadian legal system on the
other hand focuses on punishing the
offender in hopes that it will deter others
from committing similar crimes. This
system often works from the viewpoint that
committing an illegal act makes an
individual a “bad person”. Many First
Nations people who maintain traditional
values feel that such punishment is
inappropriate and requests are often made to
prevent First Nation offenders from
becoming isolated from their communities
through the prison system (Ross 1992).
For First Nations, the issue of
restoring traditional justice practices is
closely linked to that of self-determination.
In 1973, The Supreme Court ruled on the
case Calder v. A.G.B.C., finding that First
Nations title was a right because First
Nations people had occupied the land prior
to European contact. This decision also
recognized that First Nations people had
legitimate governmental and legal systems
prior to European contact. R. v. Sparrow
acknowledged that First Nations hunting and
fishing rights were valid regardless of
whether the methods used were traditional
or contemporary (Borrows 2001). This
publicly acknowledged that First Nations
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cultures are not static, but are subject to
change over time.
Both of these cases argue for the
legitimacy of First Nations governmental,
social, and judicial systems prior to
European contact. Many First Nations
justice initiatives today are not new
programs developed in accordance with First
Nations values, but old systems which were
forced underground and are now emerging
to be recognized and reinstated (Borrows
2001). Through the restoration of traditional
justice systems First Nations People are re-
affirming their inherent rights to self-
determination and in doing so they are
beginning to reverse the effects of
colonialism on their communities (Rudin
2003). One such initiative is the Unlocking
Aboriginal Justice Program which was
implemented by the Wet‟suwet‟en in British
Colombia. The program offers workshops
addressing culture, self-esteem, and abuse,
and has a strong focus on prevention and
strengthening cultural identity in the
community. When a crime does occur, the
victim and the offender‟s clan and family
develop a plan for the rehabilitation of the
offender. The program works in accordance
with the traditional laws of the
Wet‟suwet‟en and is guided by an advisory
board of elders and chiefs who have a
knowledge of the traditional laws (George
2003). The Inuit also have begun reviving
traditional laws. A program in Nunavut
called Akitsiraq has been implemented to
train students in both western law and
traditional Inuit knowledge. The Nisga'a,
also in British Colombia, have succeeded in
gaining recognition for their traditional legal
code, Ayuukhl, in their treaty with the
Canadian government (Borrows 2001).
Because First Nations justice
systems derive from traditional justice
practices, they are distinct from the
restorative justice movement, which is
gaining some momentum among non-First
Nations people. While this movement has
been heavily influenced by First Nations
values, it is looking for new, restorative
approaches to justice within the Canadian
legal system, and is not seeking to promote
traditional systems or attempting to adapt
traditional systems to work within a
contemporary context. First Nations justice
systems are specific to the cultures out of
which they developed. In contrast,
restorative justice initiatives are more
generally targeted towards the Canadian
public (Simon Fraser University School of
Criminology n.d.).
There is a strong emphasis on
standardization of restorative and First
Nations justice programs. One argument for
this is that it creates equality for offenders
across communities. A standardized system
should, theoretically, ensure that individuals
who commit like crimes are treated
similarly, receiving comparable sentences.
Another argument is that restorative systems
are easier to implement in communities
wishing to take part in a justice initiative,
and they would simply have to follow what
other communities have done before, rather
than work out a new system themselves.
Finally, a standardized system would be
easier to administrate. If communities used
comparable systems with analogous needs,
funding requirements would be predictable
(Rudin 2003).
Arguments for a standardized system
in which equality is taken to mean that
everyone receives identical treatment do not
hold up well in practice. Each community
and individual case is unique and has its
own unique set of circumstances. Giving
different individuals the same sentence for
similar crimes does not necessarily achieve
the same results. Restorative justice and
First Nations justice programs aim to
achieve the same results even if it means
treating individuals differently. The
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Supreme Court of Canada has made
recommendations that Canada use these
types of programs more frequently (Rudin
2003). Two models which have been
suggested for a standardized system are the
Maori family conferencing model and the
sentencing circle (Miller 2003). In New
Zealand, the Maori family conferencing
model either serves as an alternative to
courts or makes recommendations for the
sentencing of offenders in cases where youth
are the offenders. The offender‟s family, the
victim the offender‟s lawyer, the police, and
any person invited by the offender or the
victim are involved in the process which is
overseen by a youth justice coordinator. The
group meets to determine what the response
to the offence should be, and the decision of
the group is binding in so long as a
consensus is reached (Morris 2004).
Sentencing circles are similar in that those
involved reach a consensus on how to
respond to the offence and they take the
place of sentencing hearings. However, the
decision of the sentencing circle is not
binding but serves as a recommendation.
Most judges abide by these
recommendations when sentencing the
offender (Spiteri 2001).
These models are supported by the
state mainly because they are controllable
from the outside (Miller 2003). They have
been critiqued because they do not reflect
the values of individual communities and
have been imported from the outside.
Sentencing circles, while allowing
community involvement, are limited because
the structure of the system is the same. An
individual is still tried in a traditional
Canadian court system, they are still found
guilty by that system, and sentenced to some
form of punishment. This is not First
Nations justice because it is based on foreign
laws and was developed by non-First
Nations judges to fit within a system based
on retribution (Spiteri 2001).
Perhaps the greatest critique of
sentencing circles is that they are reactive,
dealing only with a crime which has
occurred and not directly addressing the
prevention of crime (Spiteri 2001). Most
traditional First Nations justice practices
were future oriented. They accepted that the
crime which had occurred could not be
undone and focused not on the crime itself,
but on restoring peace in the community.
This includes offering support and healing to
the victim and offender and addressing the
circumstances which contributed to the
crime in order to prevent future crimes (Ross
1992). While critiques of packaged
initiatives such as sentencing circles are
valid and require serious consideration, there
are some aspects of these initiatives which
should not be quickly discounted. In
sentencing circle initiatives community
members‟ values are taken into account in
the type of sentence that the offender
receives. This typically results in sentences
which do not remove the offender from the
community and incorporates some element
of holistic, traditional healing (Spiteri 2001).
These initiatives are also accepted by the
state. This is an important point as any
initiative will have to work in conjunction
with the existing Canadian legal system in
order to be recognized by the Canadian
government and receive funding (Miller
2003). It should also be noted that many
First Nations people have adopted at least
some European values concerning justice
(Miller 2003). Like other cultures, First
Nations cultures are subject to change.
While many First Nations people value
tradition, their way of life has adapted to
changing circumstances. These circum-
stances include contact with other cultures,
both European and First Nations. This is not
to assume that First Nations people have
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been assimilated into European culture, or
that one cultural tradition is in any way
better than another. The fact remains,
however, that First Nations people are in the
process of deciding which traditional values
should be kept as they have always been,
which should be adapted and, perhaps,
which are no longer relevant in today‟s
social context (Ross 1992:98).
Initiatives such as sentencing circles
have been adopted First Nations values
concerning justice to fit within the context of
the Canadian legal system. However, there
are approaches which go beyond this to
blend First Nations and Western systems.
These approaches show great promise.
These are instances where Western
treatment programs have been modified to
work in conjunction with traditional First
Nations healing practices. The Western
practices are usually altered in order to be
less confrontational and more communal.
What makes these initiatives successful is
that it is First Nations people themselves
who decide what elements of Western
practices they will incorporate into the
initiative and how those elements will be
applied (Ross 1992).
An example of one such system
comes from the community of Muskrat Dam
in northern Ontario. The community has
developed a family healing centre which
utilizes Western family counselling
techniques such as discussing stresses and
problems as a group. The four week
program also incorporates traditional healing
methods such as sweat lodges which make it
a more holistic approach than typical
Western family counselling programs. The
program addresses a wide range of issues
relevant to the community, including
substance abuse, violence, and trauma. So
far it has received positive feedback from
the community and those involved in the
program (Ross 1992).
There is a perception that when
participating in a First Nations Justice
system offenders “get off easy” with little or
no jail time. It is true that in many cases the
community recommends that the offender
not receive a jail sentence even in cases
when a relatively serious crime has been
committed. This reduces the likelihood of
recidivism, as rather than being isolated
from the community and possibly becoming
angrier and anti-social, the offender is given
support as they begin a process of healing
(Spiteri 2001). Far from “getting off easy”,
sentences are often relatively difficult as the
offender must work towards their own
healing and make restitution to their victims
and the community. In one instance a young
man charged with being intoxicated on a dry
reserve received a sentence which included
counselling for alcoholism and marital
issues in place of the usual fine (Ross 1992).
Every community has its own unique
needs. It has been suggested that a major
contributor to many of the social problems
faced by many First Nations communities is
the lack of attention on the part of the
Canadian government towards the unique
social and cultural dynamics of First Nations
groups when it encouraged and often forced
settlement into year-round, centralized
communities. For some this meant that
families which usually lived independently,
coming together with other families only in
the summer, were now living side by side.
Often this led to conflict as there were
cultural rules regulating such extensive
interaction with people outside the extended
family. There was often some level of
mistrust or even animosity between families.
These inter-family politics still exist today
creating unique political dynamics which
vary from community to community (Ross
1992). Some communities, however,
already lived in large year-round
settlements. As such, they had different
political dynamics and were affected
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differently by the social changes which
came with colonization. As a result, First
Nations communities are far from
homogenous, even within a particular
cultural group. If First Nations justice
initiatives are to successfully address these
problems they must take into account the
specific needs and situations within each
community. What works well in one
community may not be appropriate in
another. A system in which the community
enforces compensation may work well in
communities which had similar systems in
the past, such as the Mohawk. In
communities such as the northern
Anishinaabek such a system may need to be
adjusted to be less confrontational. This may
include the use of police as a third party to
allow community members to feel that they
are not intruding on the rights of others.
Justice initiatives need to be flexible in order
to meet community needs (Ross 1992).
An emphasis on cultural differences
taken to extremes, however, can be equally
detrimental as a universal approach. This
approach runs the risk of self-stereotyping
and can lead to the perception that First
Nations justice systems are simply the
opposite of Western justice systems. Self-
stereotyping can also lead to rigidity in
cultural practices, something which is not
consistent with the traditional flexibility of
First Nations justice systems. Evidently,
there has been an overlap in First Nations
and Western values, and there is great
diversity within and between First Nations,
both in what traditional values and practices
include and in how extensively Western
values have been adopted (Miller 2003).
First Nations justice systems are
slowly gaining acceptance in Canada, due in
part to the hope that they will effectively
address issues of over representation of First
Nations people in the Canadian legal system
and reduce recidivism. For First Nations
people these systems offer another avenue
for self-determination and opposition to
colonialism. There is, however, increasing
pressure for the use of standardized
initiatives such as the Maori family
conferencing model and the sentencing
circle. Standardization of First Nation justice
systems is not desirable, as it does not allow
for enough flexibility in dealing with the
diversity of cultures and social
circumstances within First Nations
communities. However, an indiscriminate
reinstatement of traditional practices is also
not effective. This is because First Nations
people have adopted some European values
concerning justice, and because the social
contexts wherein these justice systems must
function have been altered by contact and
the passing of time. If First Nations justice
initiatives are to be effective they must be
developed by the communities themselves to
meet their changing and individual needs
and values.
References Cited
Borrows, J. 2001. Indian Agency: Forming
First Nations Law in Canada. Polar.
24(2):9-24.
George, B. 2003. Center for Restorative
Justice: Wet‟suwet‟en Unlocking
Aboriginal Justice. March 8.
http://www.sfu.ca/crj/advanced.html
Gilman, E. 2009. The Center for Restorative
Justice: What is Restorative Justice?
March 9. http://www.sfu.ca/cfrj/fulltext/
gilman.pdf
Miller, B. 2003. Justice, Law, and the Lens
of Culture. Wicazo Sa Review. 18(2):135-
149.
Morris, A. 2004. Youth Justice in New
Zealand. Crime and Justice. 31: 243-293.
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TOTEM: vol.17 2008-2009
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Ross, R. 1992. Dancing With a Ghost:
Exploring Indian Reality. Markham,
Ontario: Octopus Publishing Group.
Rudin, J. 2003. The Center for Restorative
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March 8. http://www.sfu.ca/crj/database/
scholar/210_11_11.htm.
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Spiteri, M. 2001. Sentencing Circles For
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Windsor, Department of Sociology and
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