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

Revitalization and Future Considerations

Despite the limited status of Indigenous legal traditions in relation to Canada’s other legal systems, Indigenous legal traditions are currently being revitalized. The revitalization of Indigenous law is in the early stages of development, where knowledge of their content is being uncovered, recovered, and recorded. While knowledge recovery is not the same as law application and enforcement, it is still important, since as this knowledge is gathered over time, this collection of data and knowledge can act as a resource for communities as they explore the possibility of implementing their legal traditions in the future (Friedland 2012; Napolean and Friedland 2016).

As Indigenous communities look to the future, they will inevitably be confronted with challenges, including, but not limited to, the different ways their legal systems will need to be adjusted to meet contemporary human rights standards (Borrows 2010; Milward 2012; TRC 2015), as well as how their legal systems can address ongoing social problems, particularly violence against women and other vulnerable populations (Snyder 2014). Legal scholars have pointed out that Indigenous communities can implement their legal systems while simultaneously addressing these issues, since Indigenous laws can evolve and change over time (Borrows 2010; Borrows 2016; Napolean and Friedland 2014). That is, the authenticity of contemporary Indigenous legal systems must not be judged and/or dismissed according to how well they reflect historic practices. Instead, the legitimacy of contemporary Indigenous legal traditions should be determined according to how well they address community conflict, and if the local community accepts the legal system as legitimate (Borrows 2010).

In practice, this would have a more direct impact on the kinds of sanctions Indigenous communities would be able to deliver. Most drastically, communities would not be able to use execution as a penalty, since execution goes against international, as well as Canadian human rights standards (Milward 2012). However, communities may be able to punish certain offenders using corporal punishment, such as lashing or whipping, as long as the community consents to its use as a sanction in a referendum, or some other democratic process. According to legal scholar David Milward, corporal punishment could be an important sanction for Indigenous communities in light of the enormous amount of evidence demonstrating the ineffectiveness of prisons as a deterrent, the physical and psychological harm imprisonment has on individuals, and most importantly, the over-use of incarceration for Indigenous people (2012). However, considering corporal punishment is considered contrary to human rights standards, Milward suggests that offenders could sign a waiver indicating they wish to waive their rights in that particular instance, and be subjected to corporal punishment instead (2012). According to Milward, the types of offences this would apply to would be highly speculative at the current moment, but it is safe to suggest that corporal punishment as a sanction could apply to instances of assault and sexual assault, but also criminal negligence causing bodily harm (2012).

When looking to the future, Indigenous legal systems must be able to address the effects of colonization that oftentimes manifest in communities. While there are numerous ways to measure the effect of colonization, it is arguably most evident and observable by looking at the levels of violence in Indigenous communities, especially the gendered and sexual violence directed against women, two-spirited people, and other vulnerable populations, especially children (Deer 2015; Snyder 2014). As was discussed earlier, in historical times, a series of cultural institutions and practices encouraged individuals to fulfill their kinship obligations, making gendered and sexual violence, especially within the family/community/nation, truly abhorrent and revolting. In the future, Indigenous legal traditions must address this violence and restore balance in communities, meaning communities might potentially use harsh sanctions, such as corporal punishment alongside imprisonment, to demonstrate deterrence and denunciation (Deer 2015). In this instance, imprisonment would reflect how communities historically banished people that committed sexual violence, although imprisonment is almost always only a temporary form of “banishment”. It would be up to communities to decide how they might address the temporariness of imprisonment.