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

The status of Indigenous Legal Traditions in Canada

Contemporary Realities: Colonialism and its effects on Kinship and Indigenous Law

While the status of restorative justice programs in Canada does not require further elaboration, it is crucial to inform readers about the status of Indigenous legal traditions in Canada, especially colonialism’s effect on kinship (Borrows 2010; Chartrand 2013; Napolean and Friedland 2014; Napolean and Friedland 2016). As was pointed out earlier, kinship was an important organizing force in historic Indigenous societies, considering it produced multidirectional legal obligations towards everyone and everything. Unfortunately, the residential school experience, the gradual erosion of Indigenous languages, the imposition of band council governments, the destruction of lands and ecosystems, the overall attack on Indigenous legal systems, as well as the prosecution and jailing of Indigenous leaders who fought to maintain their traditional kinship/legal systems, have all had a disastrous effect on the role of kinship in communities, as well as an overall negative impact on general awareness of the importance of kinship (Napolean and Friedland 2014). Although kinship still functions to a certain degree in most Indigenous communities in terms of providing a loose framework to guide interpersonal and familial relationships, to having an influence on the actions of leaders, and even informing a person’s obligations to the land, (Borrows 2010) it cannot be said that kinship mediates all aspects of social and political life in Indigenous communities. Colonialism has been very destructive to Indigenous kinship practices.

As for actual Indigenous legal systems, despite the weakening of kinship, knowledge of the content of Indigenous legal traditions continues to exist in stories, oral traditions, books, scholarship, and most importantly, in the minds and memories of community Elders and leaders. Unfortunately, this knowledge does not mean Indigenous legal systems are the primary legal systems that guide communities. Instead, the Criminal Code of Canada applies to First Nations, Inuit, and Metis communities. Moreover, First Nations communities exercise very limited legislative authority under the Indian Act, which is a federal piece of legislation that gives the Department of Indigenous and Northern Affairs Canada a large amount of bureaucratic oversight over Indigenous communities (Borrows 2010). Under this legislative framework, most laws or resolutions that a band council government passes must receive federal departmental approval, (Borrows 2010) which illustrates how the Indigenous-Canada relationship is still colonial, and therefore makes it difficult if not impossible for such communities to formally exercise their historic legal traditions.