Focus On

Indigenous justice system takes holistic approach, panel speakers explain

Tuesday, December 07, 2021 @ 9:29 AM | By Amanda Jerome


Restorative justice, the importance of elders and the effects of colonization were unifying themes for speakers at the Canadian Institute for the Administration of Justice (CIAJ) 45th Annual Conference on Indigenous Peoples and the Law, held virtually and in person in Vancouver.

Speakers for the “Indigenous Laws and Justice System” panel included Val Napoleon, the Law Foundation Chair of Indigenous Justice and Governance at the University of Victoria, Joyce (Tekahnawiiaks) King, director of justice for the Mohawk Council of Akwesasne and a justice of the peace for Akwesasne Court and Justice Garth Smith, of the First Nation Court of New Westminster in British Columbia.

Napoleon noted that “one of the things that’s happened as a result of the history of our country is that much of Indigenous law has been trampled or made invisible or disregarded.”

Nonetheless, she emphasized, Indigenous law “hasn’t gone anywhere” and “it’s still part of Canada and the work is about rebuilding.”

“Law is many things. It includes philosophy; it includes ceremony, it includes rules; it includes the past, every generation has to draw from the past to deal with the problems of the present. That’s the responsibility of people engaging with law,” she explained, noting that law is an “intergenerational conversation.”

Napoleon added that “the hard work of law” has to “take place inside of human relationships, inside collective human relationships.”

“We know that there’s at least 55 Indigenous societies in Canada, each of those has a legal order. I’m not talking about small communities; I’m talking about the legal order scale,” she explained, noting that each order will have different decision-making groups and remedies.

“When there are more than one legal order in a given geographic area, we have to be able to work with and deal with that legal pluralism on the ground,” she said, explaining that in many communities in Northern British Columbia and Northern Alberta people with different and combined Indigenous heritage reside.

“Colonization has sped up this societal pluralism, so we need to think about how does it work when there are different linguistic groups, different legal orders and how do the communities manage those,” Napoleon added.

She stressed that there are “aspirations for fairness” and “inclusion” in legal orders, but “we also know that there are dynamics in our communities and sometimes Indigenous women ask for separate sessions because they want to be able to talk about their experiences in a way that they’re still safe.”

“We also know that Indigenous male privilege is just as invisible for Indigenous societies as for anybody else and it creates the same kind of unhealthy dynamics that we have to deal with,” she added.

Napoleon noted that along with Indigenous law being undermined and having “gaps,” she said there’s also “distortions.”

“So, the work of rebuilding Indigenous law area by area, question by question, is hard work and it’s complex and it requires time; an investment of time in working with communities to do this rebuilding,” she explained.

“When we think about UNDRIP [the United Nations Declaration on the Rights of Indigenous Peoples] and DRIPA [Declaration on the Rights of Indigenous Peoples Act] we think about obligations and the power of obligations in the work of law,” she said, noting that in all legal systems, Indigenous and non-Indigenous, “obligations are a central way that we understand responsibilities, that we understand the roles we take up and that we play.”

Napoleon added that all societies will vary those obligations and “vary how people can act on them, and what are the systems of accountability around them.”

“So, we can think about this as a way forward because obligations go to the centre of social relations and the social relations, for law, are critical,” she stressed, noting that “Canada doesn’t exist just because Canadian law has rules.”

“Law in Canada exists because it’s in the hearts and the minds of people and it’s the same with Indigenous law,” she added.

Napoleon explained that UNDRIP and DRIPA can be seen as “that starting place of what are the obligations we have to one another.”

King spoke from her experience of the Akwesasne Court and noted that Indigenous courts/tribunals are needed because there’s a difference between Western society and the Mohawk community.

“If you look at the approach to healing, in Western society they separate the mind, body and spirit. So, for the mind, you would go to a psychologist; for the spirit you would go to your priest; and for the body you would go to your doctor. For us, we look at it holistically. We don’t separate that; we try to treat the entire person because when their body is hurting then most likely their spirit is hurting, most likely their mind is hurting,” she explained.

She also noted that Western society has an emphasis on “individual rights” and the Mohawks emphasize “the collective right.”

“At one time,” she said, “you wouldn’t find a fence anywhere on the reservation because we all own that land collectively.”

There’s been a departure from this recently, and King noted that the Indigenous justice system is trying to go back to the “collective right.”

As for “wrong-doing,” King said that in “mainstream society it’s proof of right or wrong.”

“In a community, it’s really about accepting responsibility for things you have done,” she explained, adding that incarceration rates for Indigenous people are high because they take responsibility for wrong-doing.

As an example, she noted that “because of their upbringing,” Indigenous people will answer honestly when asked if they were at a certain place at a certain time and if there was damage done to that property.

“The First Nations person would probably say ‘yes, I am responsible.’ And then jail or whatever else the sanction is. On the other side, people are being brought up to say ‘oh, if the police talk to you, you don’t answer them.’ ‘If the police talk to you, you better get a lawyer.’ Or ‘you don’t admit anything until you’ve talked to a lawyer.’ So, you’re getting a lot of incarcerated First Nations because of their upbringing to be responsible for the actions they have committed,” she said, stressing that taking responsibility for what you’ve done is a “value of our community.”

With regards to sanctions in the Akwesasne Court, King said they’re “looking at a lot of restorative justice.”

“Rehabilitation, remediation, responsibility for your actions,” she added, noting that “a lot of times in the Western society it’s retribution; paying for your sins.”

“It’s not that we’re trying to get away from what Canada wants. It’s trying to ensure that the uniqueness of our community is translated into the dispute and the resolution of the dispute; to try and bring balance back to the community. That’s all we want,” King stressed of the goals for the Akwesasne Court.

Justice Smith spoke from his experience on the First Nation Court, but stressed that his comments are his alone and may not reflect those of other judges.

He explained that the court examines “causes of an offender’s crime using a holistic approach for healing to reduce their criminal behaviour” and also seeks to “acknowledge and repair harm done to victims, families and to the community.”

“This court is different from regular criminal courts,” he added, noting that prayers are offered at the beginning and end of court and, before the pandemic, there was also smudging.

“Everyone must introduce themselves, whether they’re appearing virtually or in person, and they are welcomed. We refer to our offenders as our clients, and we describe how we follow the Four Directions or the teachings of the Medicine Wheel for our clients who participate in our court,” he explained, noting that at an accused person’s first appearance the guilty pleas he orders “a pre-sentence report that will include a Gladue component.”

Justice Smith said the court considers “a great deal of information and input for creating the sentence.”

“Of course, the sentencing reports, the Gladue report, but also input from everyone in the courtroom, especially from our elders,” he added.

“We also will hear from victims. They get to stand up with their families and speak from the heart. Those are some of the toughest hearings that we go through. Of course, then we hear from the client and their family and their support people as well,” he said, noting that he typically imposes a probation order or a conditional sentence order.

Justice Smith explained that all of the “sentences are community supervised. They don’t include jail.”

Clients come back for “review hearings every three to six months” Justice Smith said, explaining that the clients are “accountable to our elders and to the court.”

“We consider their healing plan, and we make changes if we think appropriate. And I think the review process is the most important part of our program because when elders stand and ask questions it helps us all to heal. Questions like: who are you? Do you know your family? What’s working well for you? What’s not working well for you? What can you do differently? How can we help?” he explained.

Justice Smith said that when the “clients complete their healing plans, they’re eligible for graduation and we do blanketing ceremonies in court.” Noting, however, that these ceremonies have been held off because of COVID-19.

“We try to help as best we can in every aspect of the client’s life. Physical needs, like safe housing for the client and the family; physical health including good nutrition. For emotional needs it’s family support, anger management, one-to-one counselling, alcohol and drug counselling or in-house treatment, and therapy for intergenerational effects of Canada’s residential schools. Mental needs, such as relationship mentoring and coaching, conflict resolution skills, education, life skills, parenting skills, job training. And spiritual needs, such as prayer, connection with our creator, other spiritual practices, such as a smudge, sweat lodge, access to a long house, and other spiritual and cultural practices and ceremony,” he explained.

Justice Smith stressed that the court tries its “best to remember barriers that exist” for the client which are “not always apparent in the first while …”

“Often, we learn after several months that these people have significant reading challenges, or they can read out loud, but they can’t comprehend what they’re reading,” he said, noting that other barriers include “learning disabilities, no access to electronics or communication with service providers,” which has been a challenge during COVID-19.

Justice Smith noted that the healing process sometimes involves the elders telling their own stories, their own histories and “that’s very challenging.”

“It’s very difficult for all of us to hear. We have to take care of ourselves with that self-disclosure and how often we self-disclose because none of us wants to trigger a client or for any of our court participants to be triggered, including some elders,” he added, stressing that elders “bring to our court thousands of years of teachings, including the Seven Grandfather Teachings.”

Justice Smith concluded his portion of the panel by giving heartfelt thanks to the elders.

“My dear elders, may I thank you for sharing your beliefs and experiences freely and openly with our clients and with all of us; for not being afraid in court to speak of your love for our clients, for each of us and for each other; for your great power to heal and to help us all to heal; and for your services to our people and to our clients of our Indigenous courts, especially as we all endure our unbearable pain of residential schools and our discoveries to come.”

CIAJ’s 45th Annual Conference on Indigenous Peoples and the Law was hosted Nov. 17-19.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.