Aboriginal Justice And The Charter

Aboriginal Justice and the Charter examines and seeks to resolve the tension between Aboriginal approaches to justice and the Canadian Charter of Rights and Freedoms. Until now, scholars have explored idealized notions of what Aboriginal justice might look like. David Milward strikes out into new territory by asking why Aboriginal communities seek reform and by identifying some of the constitutional barriers in their path. He identifies specific areas of the criminal justice process in which Aboriginal communities may wish to adopt different approaches, tests these approaches against constitutional imperatives, and offers practical proposals for reconciling the various matters at stake. This bold exploration of Aboriginal justice grapples with the difficult question of how Aboriginal justice systems can be fair to their constituents but still comply with the protections guaranteed to all Canadians by the Charter.

"Aboriginal Justice and the Charter" examines and seeks to resolve the tension between Aboriginal approaches to justice and the Canadian Charter of Rights and Freedoms. Until now, scholars have explored idealized notions of what Aboriginal justice might look like. David Milward strikes out into new territory by asking why Aboriginal communities seek reform and by identifying some of the constitutional barriers in their path. He identifies specific areas of the criminal justice process in which Aboriginal communities may wish to adopt different approaches, tests these approaches against constitutional imperatives, and offers practical proposals for reconciling the various matters at stake. This bold exploration of Aboriginal justice grapples with the difficult question of how Aboriginal justice systems can be fair to their constituents but still comply with the protections guaranteed to all Canadians by the Charter.

"There was a widespread view among participants at the Round Table that the current justice system, especially the criminal justice system, is too centralized, too legalistic, too formal and too removed from the (Aboriginal) communities it is supposed to serve."--

The horrors of the Indian residential schools are by now well-known historical facts, and they have certainly found purchase in the Canadian consciousness in recent years. The history of violence and the struggles of survivors for redress resulted in the Truth and Reconciliation Commission, which chronicled the harms inflicted by the residential schools and explored ways to address the resulting social fallouts. One of those fallouts is the crisis of Indigenous over-incarceration. While the residential school system may not be the only harmful process of colonization that fuels Indigenous over-incarceration, it is arguably the most critical factor. It is likely that the residential school system forms an important part of the background of almost every Indigenous person who ends up incarcerated, even those who did not attend the schools. The legacy of harm caused by the schools is a vivid and crucial link between Canadian colonialism and Indigenous over-incarceration. Reconciliation and Indigenous Justice provides an account of the ongoing ties between the enduring trauma caused by the residential schools and Indigenous over-incarceration.

The essays in this book present important perspectives on the role of Indigenous legal traditions in reclaiming and preserving the autonomy of Aboriginal communities and in reconciling the relationship between these communities and Canadian governments. Although Indigenous peoples had their own systems of law based on their social, political, and spiritual traditions, under colonialism their legal systems have often been ignored or overruled by non-Indigenous laws. Today, however, these legal traditions are being reinvigorated and recognized as vital for the preservation of the political autonomy of Aboriginal nations and the development of healthy communities.

It contains some twenty-three papers from representatives of the aboriginal people's organizations, of governments, and of a variety of academic disciplines, along with introductions and an epilogue by the editors and appendices of the key constitutional documents from 1763.

An investigation of the unique constitutional relationship between Aboriginal people and the Canadian state, a relationship that does not exist between Canada and other Canadians.

"Thousands of recommendations have been made over the past ten years to make the criminal justice system more responsive to the needs of Aboriginal people. Yet Aboriginal people remain over-represented in prisons and subject to systemic discrimination throughout the justice system. While previous commissions have focused on reforming the existing justice system, the Royal Commission's major contribution is to examine another road - the creation of Aboriginal justice systems, and how these could work alongside the existing system. The report reviews current Aboriginal justice initiatives including Aboriginal policing, Aboriginal courts, elders panels and sentencing circles. Two case studies of successful justice initiatives provide lessons for both governments and Aboriginal people wishing to take this road. The greatest challenge is to create conceptual and constitutional space for Aboriginal justice systems. The Commission explores the jurisdictional basis for the creation of Aboriginal justice systems in Canada, as well as how jurisdictional conflicts with the federal and provincial governments could be resolved. Issues include the application of the Charter of Rights and Freedoms and the Criminal Code to Aboriginal justice systems, ensuring the safety of women and children, dealing with appeals, and Aboriginal justice in urban centres. For the first time, we see what Aboriginal justice systems might look like. The Commission concludes the report with recommendations for reforming the existing justice system, and the cost to Canadians of continued inaction."--publications.gc.ca.