We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2018

Indigenous Watchdog Status Update

Current StatusSept,. 5, 2021NOT STARTED
Previous StatusJune 14, 2021NOT STARTED

Why “Not Started”?

Although the federal and provincial governments continue to deny the existence of Aboriginal Rights and Title and Indigenous laws, the Supreme Court of Canada will hear arguments from the Assembly of Manitoba Chiefs that “First Nations laws constitute Canada’s first constitutional order, alongside the French Civil Law and the English Common Law. (Sept. 21, 2020).

Government response excludes any reference to Treaty and Aboriginal Rights, the Constitution Act, 1982 or The United Nations Declaration on the Rights of Indigenous Peoples. The focus is on a non-binding dialogue “Exploring Indigenous Justice Systems” with no committed outcomes identified and one example of a successful MOU for the administration of justice. Significant deletions from previous government updates to this Call to Action include:

  • government is full supporter, without qualification” of UNDRIP (April 8, 2019)
  • we will create new federal legislation and policies to formalize the recognition of Indigenous people’s rights, including the right of self-determination and the inherent tight of self-government. This also includes support for the development of Indigenous government institutions and systems of justice.  (Sept.  5, 2019)

C2A # 30 includes an ambiguous statement: “This work includes supporting Indigenous self-governments in developing their own systems of justice that fall in coordination with federal and provincial governments” vs “are subject to” in the April 8 version. No jurisdiction – federal, provincial, territory government has committed to the recognition and implementation of Aboriginal Justice systems

Responses

Rebuilding First Nations Governance

Aug. 24, 2020 – Social Science and Humanities Research Council is funding $2.5 million over 6 years to support Rebuilding First Nations Governance (RFNG) project, an investigation into transforming Indian Act governance. RFNG is an alliance of First Nations communities and tribal councils and academic researchers and practitioners committed to working from the community level up to end Indian Act governance and build alternatives that realize the inherent right to self-government as affirmed in the Constitution Act”.

The project seeks Indigenous alternatives to the stranglehold the Indian Act has over all aspects of Indigenous lives in Canada. The question is “How does the 6-year timeline impact the governments implementation plan for UNDRIP? See additional details in C2A # 43 Federal Government commitment.

First People’s Law: Indigenous Law vs Aboriginal Law

Jan. 20, 2021 – First People’s Law through their Aboriginal Law Report have published an insightful article explaining the differences between Indigenous Law and Aboriginal Law: “Indigenous Laws and Canadian Courts” by Kate Gunn and Cody O’Neil

Indigenous Law vs. Aboriginal Law


Aboriginal law, created by Canadian courts and legislatures, is about the legal relationship between Indigenous Peoples and the Crown within the Canadian legal system. Aboriginal law involves the interpretation of Indigenous rights recognized in the Canadian Constitution and other laws created by Canadian governments such as the Indian Act or self-government agreements. Most notably, this body of law includes defining the nature and scope of Aboriginal and Treaty rights under section 35 of the Constitution Act, 1982 and the Crown’s corresponding obligations to Indigenous Peoples.

Indigenous law refers to Indigenous Peoples’ own legal systems. This includes the laws and legal processes developed by Indigenous Peoples to govern their relationships, manage their lands and waters, and resolve conflicts within and across legal systems. As with Canadian law, Indigenous law is developed from a variety of sources and institutions which differ across legal traditions.

This post focuses on the interaction of Indigenous law and Canadian courts. It is important to note Indigenous Peoples are actively engaged in revitalizing their own legal systems and implementing their laws on their own terms in a variety of ways across the country. Check out our reading and multimedia lists to learn more about this important work.

https://www.firstpeopleslaw.com/public-education/blog/indigenous-law-canadian-courts

Government Commitments to Aboriginal Justice Systems

Federal Government

Dec. 5, 2020 – The 2020 Fall Economic Statement included $8.1 million to develop Administration of Justice Agreements with Indigenous communities to strengthen community-based justice systems and support self-determination

Aug. 17, 2020: Carleton University – Social Sciences and Humanities Research Council is funding $2.5 million over six years to support the Rebuilding First Nations Governance project, an investigation into transforming Indian Act governance. Carleton University researcher Frances Abele in the School of Public Policy and Administration (SPPA) and project co-founders Satsan (Herb George) of the Centre for First Nations Governance and Catherine MacQuarrie, a fellow with SPPA, tackles perhaps the most intractable issue in Indigenous-Canada relations: how can First Nations work free of Indian Act governance to become fully self-governing within Canada? RFNG is an alliance of First Nation communities and tribal councils, and academic researchers and practitioners, committed to working from the community level up to end Indian Act governance and build alternatives that realize the inherent right to self-government as affirmed in the Constitution Act.

May 12, 2020 – Wet’suwet’en leaders have invited Ms. Bennett and Mr. Fraser to sign the MOU on May 14. Wetsu’wet’en Hereditary Chiefs issued a statement: “The Dinï’ze and Tsakë’ze have had several clan meetings, including meetings in person, and virtual meetings with clan/house members, band council members, youth, elders, people close to home and those far away. The discussions focus on the details of the MOU for Wet’suwet’en Rights and Title including a clause by clause explanation and a summary of the work to date since the February 29, 2020, tripartite initialing of the MOU.

April 30, 2020 – We are taking a meaningful approach to section 35 of the Constitution Act, 1982. This work flows from Canada’s constitutional and legal frameworks and represents a first step in building a nation-to-nation relationship that recognizes and implements Indigenous systems of justice.” The Honourable David Lametti, P.C., M.P. Minister of Justice and Attorney General of Canada

April 5, 2019 – The Government of Canada and Red Earth Cree Nation announced they have signed a co-developed Memorandum of Understanding (MOU) to advance discussions toward developing a stand-alone administration of justice agreement. This MOU on Advancing Reconciliation will guide future exploratory discussions on the administration of justice needs and aspirations of Red Earth Cree Nation. An administration of justice agreement could outline in practical and meaningful ways how an Indigenous community assumes control for the management of justice. For example, discussion could focus on the enforcement and adjudication of Red Earth Cree’s laws, as well as how they relate to federal and provincial laws.

Mar. 20, 2019 – The federal government announced in Budget 2019, $9.1 million over 3 years for a national centre of excellence for the study and understanding of Indigenous laws that will house the world’s first joint degree in Indigenous legal orders and Canadian common law (JD/JID).  Starting in 2019/20, the funds will support the construction of “an Indigenous Legal Lodge at the University of Victoria.

British Columbia

Aug. 12, 2021 – The Gitanyow Hereditary Chiefs (Nation/Huwilp) and the government of BC and Canada have signed the Gitanyow Governance Accord. The accord provides a path forward in the B.C. Treaty process toward full self-government. Led by the restored Gitanyow hereditary governance system.

Dec. 10, 2020 – Prince George Citizen: Williams Lake Indigenous Court will have its first sitting at the Elks Hall following a virtual soft opening Friday, Dec. 11. Yeqox Nilin Justice Society has worked towards establishing such a court within the Williams Lake area for the past six years. The specialized court does not conduct trials, but provides collaborative and holistic sentencing to assist offenders in rehabilitation while reducing their tendency to re-offend and acknowledging and repairing the harm done to victims and the community, noted B.C’s Provincial Court.

“Today we celebrate a win for the four Nations surrounding the Williams Lake area; the Tŝilhqot’in, Northern Secwepemc, Southern Dekelh, and the Métis. We came together Nation-to-Nation to bring this process to Williams Lake, and because of these efforts and our dedication, the Indigenous Court is now a reality. The Indigenous Court opens the door to bringing our own traditional justice forms to the table. Executive Director, Samantha-Jo Dick, Yeqox Nilin Justice Society

Nov. 3, 2020 – The latest of these courts under development is on northern Vancouver Island, led by the Gwa’sala-`Nakwaxda’xw First Nations in partnership with the RCMP, local Crown counsel, judges and other stakeholders. The court plan is queued for final review by the Judicial Council of B.C. in January

Sept. 7, 2020 – Indigenous justice centres have recently opened in Merritt, Prince George and Prince Rupert. While each centre offers unique supports tailored to the local Indigenous community, individuals are able to access:

  • legal advice and representation for criminal and child protection matters;
  • advocacy and support in dealing with agencies such as the police and Ministry of Children and Family Development;
  • referrals to relevant agencies and services such as counselling or employment support;
  • information towards better transitions from jail and integration into the community; and
  • restorative justice options to better support and address the needs of those impacted by a crime.

May 14, 2020 – Hereditary chiefs of the Wet’suwet’en Nation have signed a memorandum of understanding with B.C. and Canada that sets the path for negotiations on legal recognition of their title to 22,000 square kilometres of traditional territory. Effective immediately, the MOU commits Canada and B.C. to recognize that rights and title are held by house groups within the Wet’suwet’en Nation, “under their system of governance.” The MOU signing comes 23 years after the Supreme Court of Canada ruled on the Delgamuukw-Gisday’wa case brought forward by Gitxsan and Wet’suwe’ten hereditary chiefs who were seeking recognition of ownership and jurisdiction over their respective territories.

May 12, 2020 – Wet’suwet’en leaders have invited Ms. Bennett and Mr. Fraser to sign the MOU on May 14. Wetsu’wet’en Hereditary Chiefs issued a statement: “The Dinï’ze and Tsakë’ze have had several clan meetings, including meetings in person, and virtual meetings with clan/house members, band council members, youth, elders, people close to home and those far away. The discussions focus on the details of the MOU for Wet’suwet’en Rights and Title including a clause by clause explanation and a summary of the work to date since the February 29, 2020, tripartite initialing of the MOU.

Mar. 6, 2020 – The BC First Nations Justice Council (BCFNJC) and the Province endorsed and signed a new First Nations Justice Strategy. The BCFNJC’s action is supported by resolutions from the BC Assembly of First Nations, the Union of BC Indian Chiefs and the First Nations Summit. The First Nations Justice Strategy sets a path for the partners involved in the strategy and the criminal justice system to work together to:

  • reduce the number of First Nations people who become involved with the criminal justice system;
  • improve the experience of those who do;
  • increase the number of First Nations people working within the justice system; and
  • support First Nations to restore their Indigenous justice systems and structures.

Strategy highlights include:

  • a two-path approach that transforms the existing criminal justice system and builds the path toward restoring First Nations laws and justice systems;
  • establishing a network of 15 regional First Nations Justice Centres around the province;
  • developing a systemic approach to implementing the Gladue decision;
  • establishing a presumption of diversion to divert First Nations people from the court system, wherever possible;
  • improving cultural competency in the justice system;
  • establishing roles for Elders and Knowledge Keepers within the justice system; and
  • increasing community justice programming in each First Nations community.

Dec. 16, 2019 – Attorney General David Eby issued the following statement in support of the new Indigenous court in Williams Lake. “The Province is working with Indigenous communities to establish Indigenous courts throughout British Columbia. These courts offer alternative sentencing options that honour traditional cultural practices, support rehabilitation and acknowledge the impact the person’s actions have had on others. “It will support better outcomes for people in conflict with the law and help reduce the over-representation of Indigenous peoples in our jails. It also brings us one step closer to reaching one of our most important goals as a government – building a justice system that better respects and addresses the needs of Indigenous peoples.”

Mar. 26, 2018 – The new Indigenous court in Prince George had its grand opening. The court will focus on rehabilitation and giving fairer representation for Indigenous persons, with Lheidli T’enneh elders being involved in the final decisions. “To have elders involved in the process, to have recognition of some of the legacy of colonization, and how that impacts people in the justice system, is really important,” explains Attorney General David Eby, who was on hand at the opening ceremony.

Ontario

May 24, 2018 – Law Society Tribunal and Tribunal Committee:

A Review Panel of The Law Society of Ontario also recommended that they:

  • explore ways to incorporate Indigenous Law principles and apply them in appropriate cases, with the help of Indigenous Law experts;
  • provide adjudicators with ongoing training in the history of Indigenous Law in Canada,
  • as well as Indigenous methods of dispute resolution, Indigenous ceremony and protocols, the Independent Assessment Process and other relevant topics.
Quebec

June 11, 2020 – “First Nations will never accept legislation that ignores the Crown’s duty to consult and does not recognize constitutionally entrenched Aboriginal and Treaty Rights as a basis. If the government remains focused on the speedy adoption of a bill that ignores our repeated calls for respect and denies our most fundamental rights, it must prepare for an uncertain tomorrow,” said AFNQL Chief Ghislain Picard.

June 5, 2020 – Bill 61, an omnibus bill (An Act to stimulate the economy of Quebec and mitigate the consequences of the state of health emergency), declared on March 13, 2020 due to the COVID-19 pandemic and tabled earlier this week by the CAQ government cannot be misused by the Quebec government to minimize its duty to consult First Nations and reduce the application of already low environmental standards to a minimum. It cannot take advantage of the current context to put the health of our populations on the back burner, nor can it more openly infringe First Nations’ Aboriginal and treaty rights,” said AFNQL Chief Ghislain Picard.

There is an opportunity here for the provincial government to put its words into action and listen to First Nations who are looking for a balance between their own economic recovery and the protection of their territories. In any case, as we have decades of experience of being excluded from the decisions that affect our communities, we will continue to do what it takes to ensure that our governments have a voice when it comes to the development of our non-ceded territories and resources,” concluded the Chief of the AFNQL.

Sept. 30, 2019 – Release of the Viens Commission Final Report with 242 recommendations including the following areas:

  • (#34) Fund projects developed and managed by Indigenous authorities that are aimed at documenting and revitalizing Indigenous law in all sectors deemed to be of interest.
  • Amend the existing laws, including the Act respecting the Director of Criminal and Penal Prosecutions, to allow agreements to be signed to create specific justice administration systems with Indigenous nations, communities or organizations active in urban areas.
Newfoundland and Labrador

Jan. 25, 2019 – Witnesses, victims, and offenders appearing in the Provincial Court of Newfoundland and Labrador will now have the option to take an affirmation or oath with a sacred eagle feather. Traditionally, in some Indigenous cultures, the eagle is considered sacred because it flies the highest and closest to the Creator. Its feathers are a symbol of spirituality that are used in many traditional ceremonies.

Manitoba

Letter to Brian Pallister, Premier of Manitoba, from Grand Chief of Manitoba Keewatinowi Okimakanak (MKO)”. Smoking at VLT (Video Lottery Terminals) sites is about jurisdiction, creating spaces for self-government and taking steps for the revitalization of First Nations laws and the inherent rights of the Nations for which MKO advocates. The MKO does not speak for the Nations as to their own self-determination and governance—the First Nations govern on their lands by their laws and policies as to how to handle smoking and second-hand smoke within their borders, including VLT sites.

The province, and its legacy, had taken steps under the previous government to create spaces for more Indigenous law revitalization and governance over First Nations spaces on reserve. MKO wants the province to continue to do so. This is about the growth of First Nations jurisdiction and steps taken to recognize and accommodate the exercise of the inherent authorities of Nations.

 http://nationtalk.ca/story/letter-to-premier-pallister-creating-space-for-mko-first-nations-to-self-govern-and-exercise-their-inherent-rights

Nova Scotia

Oct. 26, 28CBC – Cape Breton University is seeking funding from the federal and Nova Scotia governments to build a Centre for Discovery and Innovation, a modern research and instructional facility, including the Marshall Institute which would focus its work on environmental justice and Indigenous approaches to climate change. The institute, named after Donald Marshall Jr., the Mi’kmaw man who won the “moderate living fishing” dispute with the federal government in 1999 will proceed with or without the new building. “I think we’re going to have some really valuable conversations that will advance our understanding of environmental justice and Indigenous approaches to climate change, and hopefully start to make some progress on those things through those dialogues, through advocacy, through policy change,” said  Janice Tulk, a senior researcher in the university’s development department. 

Grand Council of the Crees (Eeyou Istchee)

The Department of Justice and Correctional Services started down the path of establishing an Indigenous justice system that reflects Cree values, culture and way of life over 10 years ago. This is unique in Canada and rarely seen elsewhere in the world.

Dec. 4 – 6, 2018 – the Department of Justice and Correctional Services of the Cree Nation Government (Grand Council of the Crees (Eeyou Istchee) hosted their first ever “Indigenous People’s Justice Conference: Reconciliation and Capacity Building” in Gatineau, QC. The event provided a unique and historic platform for leaders in Indigenous justice from across the globe to speak about core issues surrounding the conference’s theme. 330 participants from around the world at the conference attempted to build dialogue and understanding around many issues within Indigenous justice including:

  1. Educate, bring awareness to, and orient participants and general public in Indigenous justice and related issues;
  2. Create an enhanced dialogue between participants on issues including but not limited to Indigenous justice, corrections, child welfare, crime prevention, conflict resolution, human rights, and more;
  3. Stimulate a greater discourse within the Cree Nation, Quebec and Canada.
  4. Fulfill some of the Truth and Reconciliation Commission Calls to Action, in respect to justice, human rights, education and awareness on Indigenous issues and peoples;
  5. Resulting from participation of Canadian and international speakers, leaders and delegates, facilitate knowledge mobilization and transference opportunities to and from DOJCS staff on emerging best and promising practices in Indigenous Justice;
  6. Implement various provisions under the the James Bay and Northern Quebec Agreement (JBNQA) and other agreements in relation to the training, education and awareness of personnel working in Cree justice system;
Indigenous Bar Association

The IBA calls on Indigenous, Federal, Provincial, Territorial and Municipal governments to immediately adopt the Truth and Reconciliation Commission Calls to Action 42, which calls upon them to commit to the recognition and implementation of an Aboriginal justice system in a manner consistent with the Treaty and Aboriginal rights of Aboriginal Peoples and the Constitution Act1982.

Canadian Bar Association

Responding to the TRC Calls to Action March 2016

The Canadian Bar Association endorses Call to Action # 42 (See also Call to Action # 30)

In 2013, the CBA acknowledged the historical interface between Indigenous and European laws and customs, the constitutional protection afforded to Indigenous legal traditions and the role of these systems in the fabric of Canadian society. CBA will continue to work to improve the recognition of Indigenous legal traditions in the legal system and build support for initiatives that acknowledge and advance Indigenous legal traditions in Canada. The CBA welcomes calls to action 42 and 50 and offers the collective experience of its members to assist in reconciling Indigenous and non-Indigenous legal traditions. Call to action 42 would also apply easily to traditional dispute resolution approaches for family justice files.

No mention of commitment to UNDRIP.

Official Federal Government Response: Sept 5, 2019

The Government of Canada is committed to a renewed nation-to-nation, government-to-government and Inuit-Crown relationship, based on the recognition of rights, respect, cooperation and partnership.

As part of the broader work of rebuilding Indigenous nations, it is exploring ways to partner with Indigenous peoples on the recognition and implementations of their justice systems. On May 14 and 15, 2019, as part of a dialogue entitled Exploring Indigenous Justice Systems in Canada and around the World, the Government of Canada brought together Indigenous nations, leaders, experts and partners, as well as provincial and territorial officials to engage on the recognition and implementation of Indigenous justice systems.

Justice Canada has leveraged the Recognition of Indigenous Rights and Self-Determination discussions tables led by Crown-Indigenous and Northern Affairs Canada to enable a discussion with Red Earth Cree Nation on an administration of justice arrangement. In April 2019, the Government of Canada announced with Red Earth Cree Nation a Memorandum of Understanding that will guide future negotiations and advance reconciliation.

In addition, the Government of Canada continues to negotiate administration of justice elements within comprehensive self-government agreements.