A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Executive Outline

This report is intended to help readers better understand restorative justice and Indigenous legal traditions on their own terms, as well as help readers understand the relationship between them. It will discuss restorative justice and Indigenous legal systems independently, and through this process, will demonstrate how they are both similar in several respects, yet also quite different in other respects. This report will highlight how most, if not all, Indigenous legal traditions contain principles and mechanisms that can be described as promoting community healing, reconciliation, and the reintegration of the offender. However, this does not mean Indigenous legal orders and restorative justice are the same (Chartrand 2013; Napolean and Friedland 2014; Napolean and Friedland 2016; Snyder 2014).
There are important features that make Indigenous legal traditions quite different from restorative justice processes, including how Indigenous legal traditions often use proactive/preventative strategies mediated through kinship networks (Gray and Lauderdale 2007), how they place a high importance on spirituality (Cameron 2005; Borrows 2010), and the historic use of punitive/retributive sanctions (Milward 2012; Napolean and Friedland 2014). While this report encourages readers to understand these approaches to justice as unique, this report suggests that there are opportunities for cross-cultural dialogue between advocates for restorative justice and Indigenous legal traditions, as well as opportunities to learn from each other’s experiences and journeys.

The first section of this report will discuss restorative justice, and explore its underlying principles, as well as provide a brief sketch of various restorative justice programs that have been established in recent years. The second section of this report will discuss Indigenous legal systems on their own terms, but will pay close attention to the aspects of historic Indigenous legal systems that can be described as “criminal law”. The third section of this report will briefly discuss the international and domestic support Indigenous legal traditions have received in recent years. This includes reaffirmation from the United Nations, as well as the Canadian Truth and Reconciliation Commission, which discusses how Indigenous legal traditions can contribute towards reconciliation. Despite this international and domestic support, the fourth section of this report will describe the status of Indigenous legal traditions in Canada. While this section will emphasize the limited opportunities Indigenous legal traditions have been given to deal with legal matters compared to restorative justice processes, it will also discuss future considerations, and particularly how Indigenous legal traditions will likely have to be adjusted to meet contemporary realities, including contemporary human rights standards. The fifth and final section of this report will discuss the evolving relationship between restorative justice and Indigenous legal traditions, and what these changing dynamics might mean.