Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
This article advocates for the inclusion of intercultural dispute-resolution principles in Canadian courts to resolve conflicts between Indigenous communities and the Canadian state. These principles include judges' opening themselves up to discomfort, emotion, and unsettling in listening to Indigenous testimonies; facilitating ongoing processes for negotiation; and engaging the moral imagination to make court procedures more culturally appropriate for Indigenous testimonies. The author argues that by implementing these principles, courts can contribute to the creation of more respectful relationships between Indigenous and non-Indigenous people.
Cet article préconise l'inclusion de principes en matière de résolution des conflits interculturels au sein des tribunaux canadiens afin de rèsoudre les conflits entre les communautés autochtones et le gouvernement canadien. Ces principes incluent la volonté des juges d'être parfois mal à l'aise ou de vivre des émotions lorsqu'ils écoutent les témoignages des Autochtones, facilitant ainsi les processus continus de négociation et engageant l'imagination morale afin de rendre les procédures judiciaires culturellement mieux adaptées envers les témoignages autochtones. L'auteure soutient qu'en incluant ces principes les tribunaux peuvent contribuer à la création de relations plus respectueuses entre les Autochtones et les non-Autochtones.
1 This haiku was inspired by John Paul Lederach's idea that creativity is central to peacemaking processes; see Lederach, John Paul, The Moral Imagination: The Art and Soul of Building Peace (New York: Oxford University Press, 2005), 67.
2 In this article, the term “Indigenous” refers to First Nations, Métis, and Inuit peoples and others who self-identify as such; the term “Aboriginal” refers to claims for rights under Canadian law.
3 Regan, Paulette, Unsettling the Settler Within: Indian Residential Schools, Truth Telling, and Reconciliation in Canada (Vancouver: UBC Press, 2010), 86, discusses the colonial peacemaker myth as central to the ongoing rationalization of Canada's oppression of Indigenous communities.
4 Rodolfo Stavenhagen, “Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. Addendum. Mission to Canada” (UN Doc. No. E/CN.4/2005/88/Add.3; Geneva: United Nations Commission on Human Rights, 2004), http://www2.ohchr.org/english/issues/Indigenous/rapporteur/visits.htm, concluded that in 2004 Canada ranked eighth out of 174 countries on the Human Development Index but that Indigenous communities within Canada ranked forty-eighth.
5 See Christie, Gordon, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation,” Windsor Yearbook of Access to Justice 23 (2005), 17; Alfred, Taiaiake, Wasáse: Indigenous Pathways of Action and Freedom (Peterborough, ON: Broadview Press, 2005); Napoleon, Val, “Extinction by Number: Colonialism Made Easy,” Canadian Journal of Law and Society 16, 1 (2001), 113.
6 In this article I use the term “decolonization” to include recognition of and respect for Indigenous peoples and the need for solutions to be developed in accordance with and from within Indigenous cultural frameworks, with the end goal of autonomy and the recognition of Indigenous sovereignty. It is important to note that this concept does not necessarily include the expulsion of colonists from Canada, as in some other countries, but instead involves the expulsion of colonial values from Indigenous communities and, ideally, from non-Indigenous institutions within Canada. In arriving at this definition of decolonization, I considered the following sources: Alfred, Taiaiake and Coulthard, Glen, “A Conversation on Decolonization” (presented at the University of British Columbia, Vancouver, March 15, 2006); Alfred, Wasáse; Marie Battiste and James (Sákéj) Henderson, Youngblood, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publishing, 2000); Borrows, John, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); Borrows, John, “Creating an Indigenous Legal Community,” McGill Law Journal 50 (2005) 153; Christie, Gordon, “Justifying Principles of Treaty Interpretation,” Queen's Law Journal 26 (2000), 143; Christie, “A Colonial Reading of Recent Jurisprudence”; Napolean, “Extinction by Number”; Monture-Okanee, Patricia A and Turpel, Mary Ellen, “Aboriginal Peoples and Canadian Criminal Law: Rethinking Justice,” UBC Law Review 26 (1992), 239; Turpel, Mary Ellen, “Aboriginal People and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges,” Canadian Woman Studies 10, 2/3 (1989), 149; Turpel, Mary Ellen, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences,” Canadian Human Rights Yearbook 6 (1989/1990), 3.
7 These principles are based on those theorized in Lederach, The Moral Imagination.
8 Ibid., ix.
9 See, e.g., Coulthard, Glen S., “Subjects of Empire: Indigenous Peoples and the “Politics of Recognition” in Canada,” Contemporary Political Theory 6 (2007), 437; see also Alfred, Wasáse.
10 Turpel, Mary Ellen, “Reflections on Thinking about Criminal Justice Reform,” in Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice, ed. Gosse, Richard, Henderson, James Youngblood, and Carter, Roger, 206–21 (Saskatoon: Purich Publishing, 1994).
11 In Manley-Casimir, Kirsten, “Incommensurable Legal Cultures: Indigenous Legal Traditions and the Colonial Narrative,” Windsor Yearbook of Access to Justice, forthcoming 2012, I argue that the Canadian legal system is ill equipped to deal with Aboriginal-rights cases because of the different world views that form the basis of the Canadian legal system and of Indigenous legal orders. Although this argument may seem to contradict my suggestions here, it is my contention that changes still need to be made to the current system in the interim until separate, more culturally appropriate forums can be established and maintained to deal with Aboriginal claims.
12 The use of personal narratives and reflection to inform legal analysis is becoming more accepted in some legal academic circles; see, e.g., Williams, Patricia J., The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge, MA: Harvard University Press, 1991).
13 Professor Abdul, a Tajik storyteller and peacemaker who played a central role in ending the war in Tajikistan, has described this as the way communication is done in Tajikistan; qtd. in Lederach, , The Moral Imagination, 18.
14 Regan, , Unsettling the Settler Within, 52, quotes Boler, Megan and Zembylas, Michalinos, “Discomforting Truths: The Emotional Terrain of Understanding Difference,” in Pedagogies of Difference: Rethinking Education for Social Change, ed. Trifonas, Peter Pericles (New York: RoutledgeFalmer, 2003), 111. Boler and Zembylas advocate a pedagogy of discomfort whereby teacher and student “move outside their comfort zones, [which are/ … the inscribed cultural and emotional terrains that we occupy less by choice and more by virtue of hegemony.”
15 Delgado, Richard and Stefancic, Jean, Critical Race Theory: An Introduction (New York: New York University Press, 2001), 42.
16 Ibid., 44; Regan, Paulette, “Unsettling the Settler Within: Canada's Peacemaker Myth, Reconciliation, and Transformative Pathways to Decolonization” (Diss. University of Victoria, 2006), 65, notes that storytelling can create “transformative learning [which] involves a shift in consciousness that dramatically and permanently alters our way of being in the world.”
17 Cover, Robert M., “The Supreme Court 1982 Term Foreword: Notnos and Narrative,” Harvard Law Review 97 (1983/1984), 4; see also Williams, , The Alchemy of Race and Rights, 7.
18 Regan, , “Unsettling the Settler Within,” 4–5.
19 Cover, Robert, “Violence and the Word,” Yale Law Journal 95 (1985/1986), 1601. It is important to note that Cover's views may not be characterized as mainstream within the legal academy.
22 Ibid., 1607; see also Cover, , “The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role,” Georgia Law Review 20 (1986), 819.
23 Fanon, Frantz, The Wretched of the Earth (New York: Grove Weidenfeld, 1963), 208.
24 Alfred, , Wasáse at 267. The Mohawk word Onkwehonwe means “Original People”: ibid., 19. Smith, Linda Tuhiwai, Decolonizing Methodologies: Research and Indigenous Peoples (New York: Zed Books, 1999), 27. For a discussion of the psychological violence of colonialism see also Fanon, Frantz, Black Skin, White Masks (New York: Grove Press, 1967), cited in Razack, Sherene H., Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 2001), 3.
26 Alfred, , Wasáse at 47.
27 Ipperwash is a high-profile Canadian example of a peaceful protest to which the Canadian state responded with militaristic force, resulting in the death of Dudley George. For details see Report of the Ipperwash Inquiry (Hon. Sidney B. Linden, Commissioner; 30 May 2007), http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/index.html.
28 Regan, , “Unsettling the Setder Within,” 11–12.
29 In analysing the Supreme Court of Canada's judgments in Aboriginal-rights cases, some theorists have implicated the Canadian legal system in these more subtle forms of colonialism: see, e.g., Borrows, Recovering Canada; Christie, “A Colonial Reading of Recent Jurisprudence”; Alfred, Wasáse; and Vermette, D'Arcy, “Colonialism and the Suppression of Aboriginal Voice,” Ottawa Law Review 40 (2008/2009), 225.
30 For a more detailed analysis of the ideology and principles underpinning the Eurocentric legal system see Manley-Casimir, “Incommensurable Legal Cultures.”
31 James (Sákéj) Henderson, Youngblood, “Aboriginal Jurisprudence and Rights,” in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Wilkins, Kerry (Saskatoon: Purich Publishing, 2004), 71.
32 Lindberg, Tracey, “Critical Indigenous Legal Theory” Diss. Faculty of Law, University of Ottawa, 2007).
33 Monture-Okanee and Turpel, “Aboriginal Peoples and Canadian Criminal Law,” para 18.
34 Ibid., para 16.
35 For a prime example of the devaluation of oral history see Delgamuukw v British Columbia,  BCJ No 525 (BCSC) [Delgamuukw BCSc]. On appeal by the Gitskan and Wet'suwet'en, however, in Delgamuukw v British Columbia,  3 SCR 1010 [Delgamuukw], the Supreme Court of Canada ordered a new trial because the trial judge had not given any independent weight to oral history. For other examples of cases in which oral history evidence has not been given due weight see R v Quinney,  AJ no 313 (Prov Ct) at para 46; R v Frank,  AJ no 1074 (Prov Ct); and R v Brertton,  AJ no 257 (QB) at para 74.
36 See generally Bell, Catherine and Kahane, David, eds., Intercultural Dispute Resolution in Aboriginal Contexts (Vancouver: UBC Press, 2004).
37 It is also important to acknowledge that negotiation processes need to take into account and mitigate the power imbalances between Indigenous communities and the Canadian government.
38 Haida Gwaii, meaning “Islands of the People,” is the Haida name for the Queen Charlotte Islands. See Bringhurst, Robert, A Story as Sharp as a Knife: The Classical Haida Mythtellers and Their World (Lincoln: University of Nebraska Press, 1999), 28.
39 Lederach, , The Moral Imagination, 53–58, argues that people who have lived in situations of protracted violence become cautiously sceptical of the authenticity of social change. He asserts (ibid., 58) that one wrong move after a series of behaviours consistent with peace building can undermine the process.
40 Smith, , Decolonizing Methodologies, 1.
41 Williams, , The Alchemy of Race and Rights, 119–20, describes a memory of hearing her white friends whisper about “coloured people” and then later realizing that she was “coloured”: “I remember the terrible crash of that devastating moment of union, the union of my joyful body and the terrible power of that devouring symbol of negritude. I have spent the rest of my life recovering from the degradation of being divided against myself; I am still trying to overcome the polarity of my own vulnerability.”
42 Lederach, , The Moral Imagination, 140; see also Fanon, , The Wretched of the Earth, 210.
43 Lederach, ibid., 140.
44 These spaces are being created through the use of Truth and/or Reconciliation Commissions around the world, including in Canada in relation to the Indian Residential Schools legacy: for more information see Truth and Reconciliation Commission of Canada, http://www.trc.ca/websites/trcinstitution/index.php.
45 Delgamuukw at para 87.
46 Cover, , “The Supreme Court 1982 Term Foreword,” 53.
47 Blomley, Nicholas K., “Law, Property, and the Spaces of Violence: The Frontier, the Survey, and the Grid,” Annals of the Association of American Geographers 93 (2003), 126.
48 Lederach, , The Moral Imagination, 76.
49 The most important case in this respect is R v Gladue,  SCJ no 19, in which the Supreme Court of Canada recognized the disproportionate incarceration rates among Aboriginal peoples in the Canadian criminal justice system and held that sentencing courts must consider the special circumstances of each Aboriginal offender in determining an appropriate sentence.
50 Although such acknowledgements are central to moving toward the creation of new, more respectful relationships between Indigenous communities and the Canadian state, it is important to keep in mind a central caution regarding the further perpetuation of symbolic and subtle forms of violence by courts. Courts can continue to enact symbolic violence on Aboriginal communities, even while distancing themselves from oppressive policies of the past, if they continue to make decisions that reinforce and legitimate contemporary forms of colonialism. Decisions that continue to dispossess Aboriginal communities from their traditional territories are but one manifestation of courtenforced colonialism in contemporary Canadian society. The mere recognition of colonialism and the Canadian court system's complicity within it, although important, may not be sufficient to address the systemic trampling of Aboriginal rights in Canada in the absence of decisions that actually challenge colonialist agendas and overtly question the dominant legal, political, and economic framework: see Coulthard, , “Subjects of Empire,” 451, citing Povinelli, E., The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Durham, NC: Duke University Press, 2002).
51 Henderson, , “First Nations' Legal Inheritances in Canada: The Mikmaq Model,” Manitoba Law Journal 23 (1996), para 110.
52 Regan, , “Unsettling the Settler Within,” 18, insists that non-Indigenous people need to join the struggle to decolonize.
53 Ibid., 225.
54 Woolford, Andrew, Between Justice and Certainty: Treaty Making in British Columbia (Vancouver: UBC Press, 2005), 130, cited in Regan, , “Unsettling the Settler Within,” 191.
55 Regan, ibid.
56 At the Celebrating Indigenous Legal Traditions Law Conference (First Nations House of Learning, University of British Columbia, Vancouver, November 6–7, 2006), Ardith Walkem noted that the rules of evidence fail to acknowledge that groups of Indigenous people, rather than individuals, may collectively hold the knowledge necessary to resolve a dispute.
57 Borrows, , Recovering Canada, 91.
59 Lederach, , The Moral Imagination, 146.
60 Ibid., 160: “People working with reconciliation need to rethink healing as a process paced by its own inner timing, which cannot be programmed or pushed to fit a project. People and communities have their own clocks.”
61 Ibid., 47.
62 In relation to the Indian Residential Schools Settlement, Regan, , “Unsettling the Settler Within,” 151, highlights the shortcomings of the federal government's attempt to unilaterally impose a tort-based resolution process, which was seen as illegitimate and unacceptable to survivors.
63 Glavin, Terry, “The Fall of Dimlahamid: The Gitxsan Wet'su'weten and the Fallout of the Delgamuukw Decision,” in Nation to Nation: Aboriginal Sovereignty and the Future of Canada, ed. Bird, John, Land, Lorraine, and MacAdem, Murray (Toronto: Irwin Publishing, 2002), 175, investigates the impact of the Supreme Court of Canada's decision in Delgamuukw on the actual community in which Delgamuukw lives.
64 See Turpel, “Aboriginal Peoples and the Canadian Charter”; see also Delgado, and Stefancic, , Critical Race Theory, 26–31.
65 Wilkins, Kerry, “Conclusion: Judicial Aesthetics and Aboriginal Claims,” in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Wilkins, Kerry (Saskatoon: Purich Publishing, 2004), 288, recognizes that Indigenous peoples and individuals are often compelled to bring claims to Canadian courts as a defence to a criminal prosecution or in response to government and non-Indigenous pressures on their lands and resources.
66 Regan, , “Unsettling the Settler Within,” 54, citing Mitchell, Christopher, “Beyond Resolution: What Does Conflict Transformation Actually Transform?” Peace and Conflict Studies 9 (2002), 20.
67 Lederach, , The Moral Imagination, 62, says that the moral imagination is built upon the capacity to embrace multiplicity.
68 It is important, although not the focus of this article, to note that the moral imagination might also be engaged by legislators and government bureaucrats to recognize Indigenous perspectives within legislation. Borrows, , Recovering Canada, 137, advocates for the explicit inclusion of Indigenous legal concepts and world views within Canadian law. For example, he advocates for future generations and non-human entities, such as the environment, to be represented in decisions relating to environmental issues and the design of human settlements: ibid., 44–45, 54.
69 This idea of courts taking their “first anti-colonial step” comes from Christie, , “A Colonial Reading of Recent Jurisprudence,” 47.
* The author thanks the following people for their editorial assistance, which much improved this article: Elsie Manley-Casimir, Michael Manley-Casimir, Shin Imai, Lauren Bates, two anonymous reviewers, and the editorial staff at the Canadian Journal of Law and Society. All errors and omissions are solely the author's responsibility.
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