September 18, 2021

T-Break

Let'S Talk Law

Opinion: Fixing structural racism with Indigenous justice

“What a lot of people are not aware of or don’t understand is that at the time of contact there was a vibrant, holistic approach to justice within First Nations communities.”

Article content

Chief of the Splatsin band and chair of the Shuswap Nation Tribal Council, Wayne Christian, says that the federal commitment of $10 million to revitalize Indigenous law and traditions is an important step to erasing the historic racism of Canada’s legal system.

Advertisement

Article content

He said the money is being used by First Nations to move from research and reports to implementation of jurisdiction and control for children and families, welfare, land and resource management, and citizenship.

Indigenous people must practice and enforce their own traditional law in a modern context for it to survive, Christian maintains. It must be recognized that their legal traditions are braided together with language and cultural practices — ceremonies and dancing can be legal mechanisms.

“You need to be practicing law for it to be a living entity,” he said.

“Secwépemc legal traditions are part of and derived from the legal orders which are embedded within the social, political, economic, and spiritual institutions of our people. … The recognition and practicing of one’s traditional laws is an act of sovereignty and effectively serves as a process of decolonization through the assertion of the aboriginal right to govern oneself. We must be able to demonstrate the ways in which they have practicality in addressing today’s needs if we are to meaningfully breathe life into them once again.”

Advertisement

Article content

Federal Justice Minister David Lametti, too, insists that the revitalization of Indigenous legal systems is essential. Since May, he has announced funding for a score of projects to help First Nations, Inuit and Metis resuscitate those traditions.

In B.C., besides the Shuswap, the Heiltsuk, the Katzie and Nuu-chah-nulth have received funding.

Since 2011, Christian said his nation has been dedicated to the revitalization of Secwépemc Laws, increasing their skills and capacity and cultivating the necessary resources.

In partnership with the University of Victoria’s Indigenous Law Research Unit, the First Nation will use the money to develop training materials to increase knowledge and understanding of traditional legal principles.

Advertisement

Article content

“Receiving this grant means we can begin to teach, practice, share and utilize the learnings of our research in on-the-ground practice,” Christian said.

Workshops, training and information sessions for community members about the practical application of Secwépemc legal traditions pertaining to lands, natural resources and citizenship are planned.

The Nuu-chah-nulth Tribal Council, by comparison, is using its funding to establish an Indigenous sustainable management regime for salmon in their traditional territories by revitalizing the hishukish ts’awalk, their cultural understanding that everything in the ecosystem is connected.

The project involves elders, traditional leaders and knowledge holders working together to re-invigorate and translate traditional fisheries laws and practices into a modern format that conveys the community’s vision for the resource.

Advertisement

Article content

“The traditional law and justice is so important because it’s a step back to before there was colonial contact,” explained Sam Ens, of the B.C. First Nations Justice Council.

“What a lot of people are not aware of or don’t understand is that at the time of contact there was a vibrant, holistic approach to justice within First Nations communities. People are now aware of the residential schools, with the scooping of children and taking them out of homes, the banishment of languages, and along with that came the eradication of systems of government — potlatches were outlawed, longhouses were not allowed to be used, dancing was banned, key elements of Indigenous justice.”

This is one of the major outstanding issues between Indigenous peoples and the rest of Canada, added Doug White, chairman of the justice council.

Advertisement

Article content

“The whole notion that Indigenous people have authority and jurisdiction and decision-making power that comes from that, law-making power, that there is such a thing as an Indigenous legal order and tradition, that is something that was denied for a very long time,” said White. “It was the project of the Indian Act going back into the 19th century to displace all of the elements of the preexisting sovereignty of Indigenous people in terms of governance, jurisdiction and authority.”

The English and French colonists imposed their legal systems on Indigenous people, and Canada remains primarily an English common law nation except in Quebec, which uses the French civil code.

The English common law is built on the belief that communities resolve legal conflict through trials that are public dramas, an antagonistic process with an emphasis on oral testimony, a contest producing winners and losers.

Advertisement

Article content

In Europe, by contrast, there is an investigation or “inquisitorial” process, a thorough examination of official documents, hearings, transcripts, analyses, written depositions and expert reports.

One puts its faith in a contest with ordinary people as jurors, the other in a thoughtful text-driven process that relies on experts.

In common law, there is a higher standard of proof (“beyond a reasonable doubt”) in criminal cases than civil (a balance of probabilities). On the continent, the standard is the same for both, “une intime conviction,” as some put it, an inner, deep-seated personal conviction of the judge.

Canada has until now paid little attention to Indigenous law and traditions.

“Still, there is a tradition in this country of legal orders and traditions working together,” noted White. “We’ve really shifted into a very different time and it’s like the last major piece of the overall puzzle, and one of the most important pieces, that’s finally coming together. It’s very important for people to understand that and grapple with that, and for us to start to figure out the necessary elements of cooperative federalism that we will need for all of us to function together in a meaningful and effective way.

Advertisement

Article content

“These are ideas and concepts that are deeply rooted in the way Canada already thinks about itself, and what we are merely doing is properly recognizing the reality and the participation of Indigenous peoples in that federalism.”

He said Indigenous peoples bring a different approach than either the English or French systems based on notions of land ownership and individual rights — it’s one of more holistic values, stewardship of resources, consensus and community.

“There is a lot about civil code that seems unintelligible to the common law system, and likewise when a lot of iterations and traditions of Indigenous systems are put forward, people will see really different ways of thinking about things, different values that are at play, and objectives. It’s going to lead to a much richer reality.”

[email protected]

twitter.com/ianmulgrew

Advertisement

Comments

Postmedia is committed to maintaining a lively but civil forum for discussion and encourage all readers to share their views on our articles. Comments may take up to an hour for moderation before appearing on the site. We ask you to keep your comments relevant and respectful. We have enabled email notifications—you will now receive an email if you receive a reply to your comment, there is an update to a comment thread you follow or if a user you follow comments. Visit our Community Guidelines for more information and details on how to adjust your email settings.