Justice Systems of Indigenous Peoples in Canada
Underlying the move toward the establishment of an independent or quasi-independent Indigenous justice system is a recognition that there are certain values and customs historically attached to Indigenous communities. In addition, the concept of an independent justice system is viewed as being consonant with the notion of the inherent right of Indigenous self-government.
Constitutionally, recognition was given to the inherent right of self-government in the failed Charlottetown Constitutional Accord. Nonethelesss, discussions continue in attempting to seek this objective, including the realization of an independent or quasi-independent Indigenous justice system. One experience that is often raised as a model for such a system is what occurs in the state of New Mexico in the US.
Inquiries and Royal Commissions
Several royal commissions and public inquiries have dealt with the issue of Indigenous justice. The most prominent of these studies include two such inquiries in Alberta, one in Saskatchewan, one in Manitoba and three at the federal level, including the major Royal Commission on Aboriginal Peoples. Some of these royal commissions and public inquiries recommended a form of independent justice in Indigenous communities. In particular, the Royal Commission on Aboriginal Peoples, in its 1996 publication Bridging the Cultural Divide, recommended the establishment of independent justice systems on reserves. An independent justice system would recognize an important role for elders in the community and would reinforce those values and traditions that are historically intrinsic to those Indigenous communities. One suggestion relates to the use of "sentencing circles" as a more appropriate mechanism of dealing with certain accused in lieu of the regular courts. Other suggestions include a greater use of diversion programs and the implementation of various initiatives in corrections.
Modern Indigenous Legal Systems
Recognizing the benefits (and the entitlements) that would flow from a quasi-independent justice system, the regular courts have begun in a limited way to take into account Indigenous customs and traditions in the sentencing process. The development of this system is an evolutionary process that, at present, is in its early stages.
On 2 October 2016, the Akwesasne band council (Mohawk) announced that it had introduced a legal system that operates outside a federal framework. It is considered to be the first Indigenous legal system of its kind in Canada. This new court law, which mixes elements of Mohawk and Canadian law, covers a variety of civil matters, including sanitation, tobacco regulations and wildlife conservation. Discussions are underway between the federal government and the governments of Ontario and Québec (the provinces Akwesanse traditional territory straddles) to draft a framework for recognizing the Akwesasne legal system.
In Thunder Bay on 9 November 2016, the Ontario Court of Justice approved the establishment of a new court — the Indigenous People’s Court — that will use Indigenous traditions in the court process to promote healing and reconciliation.