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Raven grows new feathers : realizing contemporary Indigenous visions of justice in Canada through the.. Milward, David Leo 2009

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     RAVEN GROWS NEW FEATHERS:  Realizing Contemporary Indigenous Visions of Justice in Canada Through the Culturally Sensitive  Interpretations of Legal Rights  By  David Leo Milward  B.A., The University of Calgary, 1996 L.L.B., The University of Alberta, 1999 L.L.M., The University of Alberta, 2003  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY  in  THE FACULTY OF GRADUATE STUDIES  (Law)  THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)   October 2009  © David Leo Milward, 2009  ii ABSTRACT   Indigenous peoples in Canada demand self-determination over criminal justice for a number of reasons. Indigenous approaches to justice that resemble restorative justice are thought to be more effective in dealing with Indigenous criminality, to promote the healing of offenders and victims, and to promote relationship reparation in Indigenous communities.  Indigenous punitive sanctions such as corporal punishment may also provide a briefer deterrent alternative that avoids the hardening conditions of prisons.    Indigenous peoples have little room to pursue these visions of justice.  Canadian laws and policies accords only minor accommodations of Indigenous approaches to justice.  This is sustained by a political culture that often demands harsher sentences to assure deterrence and public safety.  Judicial treatment of the Aboriginal rights provision of the Constitution Act, 1982, provides limited scope for Indigenous peoples to litigate or negotiate for rights to substantive criminal jurisdiction.      One approach to overcoming this is to litigate for an Indigenous right of internal autonomy.  It gives Indigenous peoples a better position to demand greater accommodation for their justice practices.  Another approach is for Indigenous communities to explore avenues for their own economic development, so that they can their own justice systems, free of external influence, to meet their needs.  If Indigenous self-determination becomes a reality, there is another issue that is imperative to address.  What happens when Indigenous individuals assert their legal rights under the Canadian Charter of Rights and Freedoms against their own justice systems?  This engages a tension between Indigenous justice traditions that emphasize collective well-being and individual rights.    iii  There is a method for resolving this tension.  The Royal Commission on Aboriginal Peoples explored the concept of culturally sensitive interpretation of legal rights, re-interpreting legal rights under the Charter to better reflect Indigenous justice traditions while still leaving in place meaningful safeguards against the abuse of collective power.  This dissertation puts culturally sensitive interpretation into action by exploring specific proposals with reference to specific rights in the Charter.                        iv TABLE OF CONTENTS  Abstract........................................................................................................................................ii  Table of Contents .......................................................................................................................iv  Acknowledgments ......................................................................................................................xi  Dedication .................................................................................................................................xiv  Chapter 1: Introduction ............................................................................................................. 1  Chapter 2: Indigenous Justice in the Past .............................................................................. 15  2.1 Preliminary Observations.......................................................................................... 15  2.2 Past Indigenous Approaches to Justice..................................................................... 21  Chapter 3: Contemporary Indigenous Visions of Justice ..................................................... 28  3.1 Western Approaches to Justice ................................................................................. 28  3.2 Restorative Justice and Comparisons to Indigenous Justice..................................... 32  3.3 Criticisms against Western Punitive Approaches..................................................... 38  3.3.1 Deterrence Unrealized ............................................................................... 38  3.3.2 Makes the Offender Worse ........................................................................ 39  3.3.3 Mere Political Gesture ............................................................................... 42  3.3.4 The Root Causes of Crime......................................................................... 43  3.3.5 Does Not Serve the Victim ........................................................................ 48  3.3.6 Does Not Promote Responsibility.............................................................. 49  3.3.7 Does Not Promote Relationship Reparation.............................................. 51  3.3.8 Restorative Justice is More Effective ........................................................ 52  3.4 Indigenous Punitive Approaches .............................................................................. 55  Chapter 4: Indigenous Demands for Jurisdiction over Justice ............................................ 61   v 4.1 For Its Own Sake ...................................................................................................... 61  4.2 Cultural Difference ................................................................................................... 62  4.3 Remedial Self-Determination ................................................................................... 68  4.4 An Objection - Not Good Enough to Justify Full Independence.............................. 71    Chapter 5: The Present Situation in Canada ......................................................................... 79  5.1 Canadian Legislation and Indigenous Justice........................................................... 79  5.1 Indigenous Justice Initiatives in Canada................................................................... 82  5.2 Inherent Indigenous Rights under the Constitution .................................................. 90  5.2.1 Section 35(1) and Sparrow......................................................................... 92  5.2.2 Van der peet ............................................................................................... 94  5.2.3 Pamajewon................................................................................................. 93  5.2.4 Delgamuukw.............................................................................................. 95  5.2.5 Justifiable Infringement ............................................................................. 98  5.3 Treaty Rights........................................................................................................... 101  5.4 Section 35(1) and Indigenous Justice ..................................................................... 108  Chapter 6: Sustaining Minimal Legal Space........................................................................ 111  6.1 Judicial Doctrine and Colonialism.......................................................................... 111  6.1.1 Subordination to State Sovereignty ......................................................... 111  6.1.2 Preference for a Political Resolution ....................................................... 113  6.2 The Political Inertia against Indigenous Justice Reform ........................................ 115  6.2.1 Political Pressures in Responding to Crime............................................. 115  6.2.2 Giving Too Much Away .......................................................................... 120  6.2.3 The Dovetail............................................................................................. 126   vi Chapter 7: Realizing Indigenous Jurisdiction over Justice ................................................ 131  7.1 The Need to Revisit Precedent in Canada............................................................... 131  7.2 Reconstruction – An Indigenous Right to Internal Autonomy ............................... 135  7.3 An Alternative - International Human Rights......................................................... 141  7.4 Unilateral Self-Determination: From the Grassroots Up ....................................... 144  7.5 Making It Viable..................................................................................................... 145  Chapter 8: Addressing the Tension....................................................................................... 149  8.1 Collective Power vs. Individual Autonomy............................................................ 149  8.1.1 The General Tension................................................................................ 149  8.1.2 Indigenous Collective Values vs. Western Individual Rights ................. 151  8.1.3 Crime Control vs. Due Process................................................................ 158  8.1.4 The Tension Involved with Indigenous Control over Justice .................. 160  8.2 Culturally Sensitive Interpretations of Legal Rights .............................................. 164  8.2.1 Continued Colonialism ............................................................................ 165  8.2.2 No Longer Tradition? .............................................................................. 167  8.3 Canadian Law and Culturally Sensitive Interpretation........................................... 174  8.4: Realizing the Culturally Sensitive Interpretation of Legal Rights......................... 176  Chapter 9: Culturally Sensitive Interpretations of Rights during the  Sentencing Process.................................................................................................................. 184  9.1 Right to be heard before an Independent Judge...................................................... 186  9.1.1 Canadian Jurisprudence ........................................................................... 186  9.1.2 The Conflict ............................................................................................. 188  9.1.3 The Proposal ............................................................................................ 195  9.1.3.1 Protection of Independence....................................................... 196  vii  9.1.3.2 Knowledge of the Local Charter............................................... 198  9.1.3.3 Our Own Qualifications............................................................ 201  9.1.3.4 Accommodating Traditional Authority..................................... 202  9.1.4 Objections ................................................................................................ 203  9.1.4.1 Same as Before ......................................................................... 203  9.1.4.2 Minimal Qualifications ............................................................. 206  9.1.4.3 Corrupted Selection .................................................................. 208  9.2 Natural Justice......................................................................................................... 209  9.2.1 Canadian Jurisprudence ........................................................................... 209  9.2.2 The Conflict ............................................................................................. 210  9.2.2.1 Perpetual Disqualification by Reason of Personal Ties............ 210  9.2.2.2 Personal Knowledge and Dispute Resolution........................... 213  9.2.2.3 Equality vs. Hierarchy .............................................................. 214  9.2.3 The Proposal ............................................................................................ 215  9.2.3.1 Hierarchy................................................................................... 216  9.2.3.2 Natural Justice for the Offender................................................ 216  9.2.3.3 Natural Justice for the Victim................................................... 219  9.2.3.4 Necessities and Appeals............................................................ 229  9.2.3.5. Recorded Reasons.................................................................... 232  9.2.4 Objections ................................................................................................ 235  9.2.4.1 External Imposition................................................................... 235  9.2.4.2 Foreign Authority Structure...................................................... 236  9.2.4.3 Fallacy of Recorded Reasons.................................................... 237  viii  9.2.4.4 Logistical Problems .................................................................. 238  Chapter 10: Culturally Sensitive Interpretations of Rights during the  Trial Phase............................................................................................................................... 240  10.1 The Presumption of Innocence ............................................................................. 240  10.1.1 Canadian Jurisprudence ......................................................................... 240  10.1.2 The Conflict ........................................................................................... 241  10.1.3 The Proposal .......................................................................................... 245  10.1.4 Objections .............................................................................................. 250  10.1.4.1 Still Encourages Guilty Pleas.................................................. 250  10.1.4.2 Increased Risk of Conviction.................................................. 251  10.2 Adversarial Trials.................................................................................................. 256  10.2.1 Canadian Jurisprudence ......................................................................... 256  10.2.2 The Conflict ........................................................................................... 257  10.2.3 The Proposal .......................................................................................... 260  10.2.4 Objection................................................................................................ 264  Chapter 11: Culturally Sensitive Interpretations of Rights during the Investigative Stage ......................................................................................................................................... 267  11.1 Right against Unreasonable Search and Seizure................................................... 267  11.1.1 Canadian Jurisprudence ......................................................................... 267  11.1.2 The Conflict ........................................................................................... 270  11.1.2.1 Police in Contemporary Indigenous Communities................. 270  11.1.2.2 The Collective Good............................................................... 272  11.1.3 The Proposal .......................................................................................... 273  11.1.4 Objection................................................................................................ 278  ix  11.2 Right to Silence..................................................................................................... 280  11.2.1 Canadian Jurisprudence ......................................................................... 280  11.2.2 The Conflict ........................................................................................... 282  11.2.3 The Proposal .......................................................................................... 284  11.2.3.1 Pre-Trial Right to Silence ....................................................... 284  11.2.3.2 A Case to Meet Rule............................................................... 285  11.2.3.3 Sanctioning Deceit.................................................................. 286  11.2.4 Objections .............................................................................................. 287  11.2.4.1 Civil Libertarian Objection..................................................... 287  11.2.4.2 Conflict with Culture .............................................................. 288  11.3 Right to Counsel ................................................................................................... 290  11.3.1 Canadian Jurisprudence ......................................................................... 290  11.3.2 The Conflict ........................................................................................... 294  11.3.3 The Proposal .......................................................................................... 297  11.3.4 Objections .............................................................................................. 301  11.3.4.1 Competency ............................................................................ 301  11.3.4.2 External Imposition................................................................. 302  Chapter 12: Culturally Sensitive Interpretations of Rights  Involving Final Resolution ..................................................................................................... 304  12.1 Cruel and Unusual Punishment............................................................................. 304  12.1.1 Canadian Jurisprudence ......................................................................... 304  12.1.2 The Conflict ........................................................................................... 306  12.1.3 The Proposal .......................................................................................... 309    x 12.1.3.1 Execution ................................................................................ 309  12.1.3.2 The Australian Experience...................................................... 310  12.1.3.3 Punishment by Consent........................................................... 312  12.1.4 Objections .............................................................................................. 313  12.1.4.1 Cruel and Degrading........................................................................... 313  12.1.4.2 Offender’s Veto .................................................................................. 315  12.2 Exclusion of Evidence .......................................................................................... 319  12.2.1 Canadian Jurisprudence ......................................................................... 319  12.2.2 The Conflict ........................................................................................... 321  12.2.2.1 Exclusion as an Alien Concept ............................................... 321  12.2.2.2 Disrepute in Whose Eyes? ...................................................... 323  12.2.2.3 Reflexive Exclusion................................................................ 324  12.2.2.4 Social Costs............................................................................. 326  12.2.3 The Proposal .......................................................................................... 327  12.2.3.1 Comparative Perspectives....................................................... 328  12.2.3.2 Section 24(1) as an Alternative Base of Remedy ................... 332  12.2.4 Objections .............................................................................................. 335  12.2.4.1 Lack of Incentive .................................................................... 335  12.2.4.2 Both Remedy and Police Discipline? ..................................... 338  12.3 Closing Thoughts.................................................................................................. 341  Chapter 13: Conclusion.......................................................................................................... 342 Bibliography ............................................................................................................................ 353   xi Acknowledgments One person can never, completely on his or her own, ever complete a work of this scope without help from many people along the way.  This work is no exception.   While many people helped along the way, several stand out and will receive explicit acknowledgments here.  The author would like to thank Professor Gordon Christie for being the greatest supervisor that any Aboriginal graduate student and aspiring Aboriginal law professor could hope for.  Gordon always pushed me to make my work the very best that it can be, and to be the very best academic that I could be, and with my best interests in mind.  Yet however hard he pushed, he always encouraged me in the belief that I could do it and reach my goals.    The author would also like to thank Professor Michael Jackson.  Michael brought vital knowledge of criminal law, particularly as it relates to Aboriginal peoples, that was needed to help make this dissertation possible.  Michael’s enthusiasm and passion for pursuing justice on behalf of Aboriginal people, and realizing the Aboriginal world view, cannot help but rub off on someone who shares similar goals.    The author would also like to thank Bruce Miller of U.B.C.’s Department of Anthropology.  Bruce opened my eyes to new ways of looking at Aboriginal justice issues, and thereby helped improve the quality of the dissertation.  He also impressed  xii upon me that the pursuit of scholarly endeavours must always be tempered by a healthy dose of common sense and practical wisdom.    The author also thanks Professor Doug Harris.  Doug went over this work at its various stages with an exacting and fine toothed comb, and always with the objective of making the dissertation the very best that it can be.  The feedback was never delivered with a mean spirit, but constructively, and it always contributed to improving the quality of the dissertation.  The author would also like to thank the former Associate Dean of Graduate Studies and Research, Wes Pue.  Wes always looked out for the best interests of any graduate students that came to the law school, and no assistance that was needed was ever beneath his notice or a burden on him.  Wes was a great help in my early years of the program, which are undoubtedly the toughest for any doctoral student.    The author also thanks the Graduate Program administrator, Joanne Chung.  Joanne was always ready to lend a helping hand, and made every graduate student feel welcome in the program.  She was also there whenever you simply needed somebody to talk to.  The author also thanks Professor June McCue, for providing helpful feedback on various works in progress, for sharing her insights on the Aboriginal legal world, and for providing several research assistantship opportunities that helped me get by.  xiii The author also thanks the previous administrators of the First Nations Legal Studies Program, Jennifer Duncan and Gloria Cardinal.   Both were always reliable friends and great resource persons for any Aboriginal student who came to U.B.C. law.  The author also thanks Dean Mary Anne Bobinski for making the law school one of the finest in Canada and the world, with its graduate program being no exception.  She also helped me out at some critical junctures during my program, for which I am very grateful.  The author also thanks his friends among the students of the First Nations Legal Studies Program.  The pursuit of higher education is not always about hitting the books, and sometimes it is made better by simply enjoying the social company of one’s peers.  Aboriginal law students that are remembered with particular fondness by the author include Don McIntyre, Kinwa Bluesky, Laura Matthews, Sarah Morgan, Magnolia Unka, Shayla Point, Amanda Sutton, Janine Maine, Rosalind Campbell, Mina Holmes, Jean-Luc Forest, Emma Miller, Karen Osachoff, Christina Cook, and Chris Derrickson.   The author also thanks his father and mother, Leo and Mary, without whose unending love and support none of this would ever have been possible.  The author also thanks his siblings, Michael, Sarah, and Peter, for their support along the way.  The author also thanks his beautiful niece, Naomi, whose joyful spirit gives me hope for the next generation.   xiv          For Mary, Leo, and Naomi   1 CHAPTER 1: INTRODUCTION Raven cares for the Indigenous peoples of Canada.  He wants to see them happy and free.  He feels for their misery as they cope with their hardships in the present day, a time that sees an enduring and overwhelming society previously foreign frustrate their desires.  He feels sorrow as they turn on each other and harm each other after being cut off from the teachings he shared with their ancestors, and after being oppressed in their own land called Canada.   He feels sorrow as many of them are confined like animals inside small buildings called ‘jails’ and ‘prisons’.  Raven feels hope though.  He sees Indigenous peoples pursuing concrete solutions to their problems.  They want to be able to lead fulfilling lives, even allowing for the continued presence of that society called Canada.  Many of them want to regain control over their own affairs, using the same teachings that Raven shared with their ancestors long ago.  Many of them want to use those teachings to resolve the destructive conflicts and disputes that afflict their communities on an ongoing basis.  Many of them want to use the teachings to heal those who have been harmed and oppressed.  Raven is happy.  He spreads his wings outward as he readies himself for an exciting new journey. But Raven hesitates.  He senses things that trouble him.  Raven ponders what will happen when Indigenous peoples reclaim from the Canadian state the power to resolve their own disputes with their own teachings.  He becomes aware of a law considered sacred by many Canadians, a written law called the Charter.  He wonders what will happen if this Charter applies to conflicts in Indigenous communities.  Raven begins to see possibilities that concern him.  Some of the Indigenous peoples received from him a spiritual teaching to speak the truth to the Elders when there was a dispute.  Raven’s far   2 seeing eye begins to read the words of this Charter.  He notices that people who are accused of wrongdoing have a right not to incriminate themselves.  What if an Indigenous man accused of wrongdoing tells his Elders he doesn’t have to speak to them because of this Charter?  Does this mean nothing will be done about what the man did?  Does this mean that the conflict and tensions in the community remain unresolved?  What if he admitted he did the wrongdoing to a couple of men in uniforms who were employed by the community to keep the peace?  Raven then looks at another part of this Charter and notices a clause that says something about excluding evidence.  Does this mean that nothing will be done because the men in uniforms forgot to tell him about something called a ‘right to a lawyer’?  Raven is genuinely worried about the possibilities. His concerns do not stop there.  The old ways of proving oneself as a worthy leader have been eroded.  People become leaders in Indigenous communities nowadays by mimicking the ways of Canadian leaders.  This troubles Raven.  He sees that community members often compete with each other for power and money.  He sees that those in power can abuse their advantages to the detriment of the people they are supposed to be serving.  What does this mean for resolving conflicts in the community?  Does this mean that innocent people will be persecuted by being punished for things they never did?  Does this mean that the powerful can use those men in uniforms to intimidate community members?  Will this leave vulnerable people, such as women and children, unsafe in their own communities?  Raven is distressed.  Maybe this written law, this Charter, is helpful after all if it can prevent these abuses from happening. But Raven then realizes that this leads back to those other problems.  He is confused.  He closes his eyes and thinks hard.  Raven realizes that Indigenous people live   3 in a world that is far different than the one when he first gave his teachings.  The needs and circumstances of Indigenous peoples have changed.  Does this mean that the old laws and teachings should adapt?  Is it possible that there are some things about the written law of the Canadians that are good and useful to Indigenous peoples?  Can the old ways blend with some of those written laws to meet the challenges of a new time?  He contemplates the possibilities.  The journey ahead will be a challenging one.  Raven wonders whether he should grow new feathers. The narratives of Raven embarking on a new journey, meditating on potential troubles, and growing new feathers, are intended to symbolize the two primary goals of this dissertation.   Both goals are concerned with realizing contemporary Indigenous visions of justice within what is now Canada.  One goal is an in-depth exploration of possibilities for Indigenous peoples obtaining substantive jurisdiction over criminal justice, which is presently held by the Canadian state.  This is the subject of the next seven chapters.  The remaining chapters confront in detail an important issue that will need to be addressed if Indigenous peoples do attain jurisdiction over criminal justice.  How can Indigenous communities address the inevitable tension that would arise should Indigenous individuals assert their constitutional rights under the Charter of Rights and Freedoms1 against their own justice systems?  The rest of this introduction provides a chapter by chapter overview of the dissertation. Chapter 2 provides the initial background by exploring how some Indigenous societies dealt with crime in the past – some of the spiritual teachings that Raven (the Trickster) shared in the past.  The basis for this is an examination of the justice practices                                                  1 The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982,  (U.K.), c. 11.   4 of several Indigenous societies, as described through the lens of disciplines such as anthropology, ethnography, and history.  There are several concerns with the use of such descriptions, such as historical authenticity, loss of memory, and perceived biases on the part of non-Indigenous scholars when studying Indigenous cultures.  The discussion in this chapter strives to avoid such controversies by grounding reliance on scholarly descriptions on whether they are consistent with what present day Indigenous peoples themselves believed how their ancestors practiced justice.  This overview reveals that Indigenous justice practices often emphasized community harmony, reparation, and reconciliation between aggrieved parties.  Some Indigenous societies however also used harsh and forceful sanctions such as corporal punishment and execution.   Chapter 3 explores how Indigenous communities may want to adapt past justice practices for contemporary use.  A key impetus behind this is the fact that Indigenous peoples are imprisoned far out of proportion to their representation in the Canadian population.  This reflects several problems.  Many Indigenous persons are left unable to lead healthy lives while in prison, and are damaged even further by the experience of incarceration.  Social forces such as poverty wreak havoc on Indigenous communities, leading many Indigenous persons to lives of crime and prolonged involvement in the justice system.  Many people in Indigenous communities become victims of crime.   Contemporary adaptations of past Indigenous approaches to justice are often presented as potential solutions to these problems, that they can deal more constructively with the underlying causes behind Indigenous crime, that they provide a form of healing, and that they would further community harmony.  These themes are fleshed out by comparing Indigenous justice practices to restorative justice, a model of justice for which there is an   5 abundance of literature produced by legal scholars, criminologists, sociologists, and others.  The chapter also considers a relatively unexplored possibility, the contemporary use of corporal sanctions as punitive alternatives to incarceration.   Chapter 4 provides an overview of Indigenous demands for self-determination, the objective that Raven wants Indigenous peoples to achieve for themselves, from a number of perspectives and with a particular reference to criminal justice.  Self-determination for identifiable peoples, free of interference from other peoples, is often thought of as something that has value in itself.  Cultural legitimacy is also seen as important to self-determination.  The concept is that different peoples should be able to govern themselves in accordance with their own cultures, customs, and laws.  Canadian and Indigenous approaches to justice each reflect different cultures, and worldviews.  The application of Canadian standards of justice to conflicts in Indigenous communities can amount to a culturally illegitimate imposition.  Self-determination is also seen as having a remedial aspect.  If a people have previously been oppressed, self-determination is seen as empowering them to pursue solutions to the social problems left behind by Canadian colonialism.  Self-determination over criminal justice can enable Indigenous communities to employ contemporary adaptations of their past justice practices as solutions to the problems caused by colonialism.   These are the possibilities that fill Raven with excitement and hope, and if realized would mark the start of a new journey. The trouble is in getting to that point.  The problem remains that Indigenous peoples have minimal legal space and jurisdiction within which to realize their own visions of justice.  This is the subject of Chapter 5, which provides a detailed overview of Canadian laws and policies, judicial and legislative, relevant to Indigenous legal   6 jurisdiction over criminal justice. Canadian laws and policies tend to afford only minor accommodations of Indigenous approaches to justice in the form of sentencing circles and diversionary programs for minor offences, and correctional programs for incarcerated offenders.  Canadian criminal legislation such as the Criminal Code2 applies as a matter of course to Indigenous peoples, with the effect of suppressing Indigenous legal orders.  While Indigenous constitutional rights are recognized in s. 35(1) of Canada’s Constitution Act, 1982 (which reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”)3, the rights available under this section are interpreted very narrowly by the courts.  The result is that Indigenous peoples have very little recourse to challenge this state of affairs.   Chapter 6 explores some of the reasons behind this.  Canadian politicians are motivated by two distinct political forces that dissuade them from further accommodations of Indigenous approaches to justice.  One is a political culture that often regards longer and more severe sentences as necessary to deter crime and protect the public.  Canadian leaders therefore strive to avoid the appearance of being soft on crime.  The other political force is the risk of losing political support as a consequence of appearing to give too much away to an Indigenous minority at the expense of a non-Indigenous majority.  These two forces may combine together to produce an especially acute political reluctance to further accommodate Indigenous approaches to justice.  Canadian leaders avoid showing a leniency in the sentencing of Indigenous offenders that non-Indigenous offenders do not enjoy.  The Canadian judiciary has in turn demonstrated a trend towards being deferential towards Canadian governments in its interpretation of                                                  2 Criminal Code, R.S.C. 1985, c. 46. 3 Constitution Act, 1982, being Schedule B to the Canada Act 1982,  (U.K.), c. 11.   7 Indigenous rights.  The judiciary has also consistently stated a preference that contentious Indigenous issues be resolved by political negotiation rather than litigation.     Chapter 7 will explore how Indigenous peoples can expand the legal space within which to realize their own visions of criminal justice.    A strategy that will be explored is litigating for an Indigenous right to internal autonomy, the right of a community to resolve conflicts between its own members in accordance with its own customary laws.  This is based on a dissenting judgment that suggested that the common law doctrine of Indigenous rights, which recognized the rights of Indigenous peoples to govern their own affairs by their customs and usages, can be elevated to become a source of constitutional rights under s. 35 (1).  It also has basis in certain obiter dicta in Indigenous rights jurisprudence that suggest a willingness to revisit the issue of self-government under s. 35(1).  Another encouraging development is the rising chorus of calls to have one Supreme Court seat reserved for an Indigenous judge.  This may amount to little more than a position that is possibly favourable to Indigenous aspirations during litigation, but it may provide a relatively better setting in which to pursue broader rights under s. 35(1).   The desired result of this strategy is that Indigenous communities come to either the freedom to structure their own justice systems independent of Canadian legal and political restraints, or a strengthened position from which to negotiate greater accommodations from Canadian leaders.  The latter indeed highlights a flaw with the Supreme Court’s stated preference for Indigenous rights issues to be resolved by negotiation rather than litigation.  Such a preference puts the horse before the carriage in the sense that without a strong basis in constitutional rights, the negotiating position of Indigenous peoples is weak.  Indigenous peoples need a solid foundation for judicial   8 recognition of their rights under s. 35(1) to be able to negotiate effectively with Canadian governments and obtain meaningful concessions. Even if Indigenous societies attain self-determination over criminal justice, this engages another important issue, and thus the reason why Raven hesitated to take flight right away.  What might happen should Indigenous individuals invoke the Canadian Charter of Rights and Freedoms against their own justice systems?  Should Indigenous societies allow their collective goals to be compromised for the sake of individual rights protections?  What happens if Indigenous individuals are not allowed to invoke the Charter?  Does this allow Indigenous collectivities to establish tyrannies over their own members?  There is a certain tension here between Indigenous visions of justice that emphasize crime control and the collective good, and Charter rights that safeguard individual liberty.  This can be seen not only as tension between collectivist and individualist visions, but between culturally-grounded visions of governance as well. What is proposed is that this tension can be addressed through culturally sensitive interpretations of the legal rights of the Charter.  What this means is that Charter rights are interpreted creatively to produce new doctrines that both accommodate Indigenous perspectives on justice and still provide meaningful checks against abuses of collective power.  This tension, and the use of culturally sensitive interpretations to address it, is the subject of Chapter 8.  Discussions in Chapter 8 will also demonstrate that Canadian constitutional law provides workable mechanisms to realize culturally sensitive interpretations of legal rights, since it requires that when different constitutional rights come into conflict they should be balanced in non-hierarchical fashion without clear priority being given to one over the other.     9 The remaining chapters explore how culturally sensitive interpretation of legal rights can be put into action.  These are the parts where Raven closes his eyes and thinks hard.  The particular rights that are subjected to culturally sensitive interpretation are the right to an independent tribunal, the right to natural justice, the right to be presumed innocent, the right to an adversarial trial, the right against unreasonable search and seizure, the right to silence, the right to counsel, the right against cruel and unusual punishment, and the exclusion of evidence as a remedy for Charter violations.  Each Charter right is assessed in terms of potential difficulties that they can create for Indigenous visions of justice, but also in terms of why it may be needed in order to prevent abuses of power in Indigenous communities.  A concrete proposal that reflects a culturally sensitive interpretation is then presented that strives to reconcile the competing concerns.  What is meant by reconciliation is that the proposal tries to leave as much as possible for Indigenous visions of justice to operate in the communities, while still leaving in place meaningful checks against abuses of power. The proposals represent a blending of Indigenous traditions and Canadian legal principles.  Raven grows new feathers and spreads his wings for a new journey.  Chapter 9 deals with rights of procedural fairness during what we may think of as the sentencing phase of criminal proceedings.  The right to an independent judiciary means that judges have their independence protected by security of tenure, security of remuneration, and security of administration.  If judicial independence requires certain qualifications such as a law degree, it can entail incompatibility with Indigenous notions of authority that often emphasize seniority and recognition for character and wisdom in the community.  Mandatory retirement is also problematic since age did not represent a   10 limit on the eligibility of an Indigenous Elder to participate in conflict resolution.  The coercive powers associated with common law judges may also be incompatible with Indigenous modes of authority that often emphasized teaching and persuasion.  The proposal here is that Indigenous communities can have their conflicts overseen by community court judges who are protected by the three features of judicial independence.  They do not necessarily have to have onerous requirements such as a law degree.  Indigenous communities themselves can set the qualifications for community court judges.  Furthermore, so long as the parties to a conflict act fairly towards each other, their resolutions can become binding on a community court judge.  The right to natural justice can present difficulties because it requires that judicial authorities remove themselves from hearing cases where they are personally tied to one of the parties.  This in practice can result in community court judges from always having to disqualify themselves given the closely-knit nature of smaller Indigenous communities.  There is nonetheless a real need for procedural fairness in Indigenous communities, where power dynamics can operate to the severe disadvantage of either the accused or the victim.  The proposal is that community court judges need not disqualify themselves so long as they actually are being fair in their decision-making.  If one of the parties has concerns about fairness, other safeguards can be made available such as recourse to Indigenous courts of appeal and requiring community court judges to provide recorded reasons in cases where natural justice is potentially a source of concern (e.g. the judge is tied to one of the parties).     Chapter 10 is concerned with Charter rights that are applicable to when an accused asserts innocence, and necessitates a trial to determine the facts.  The right to be   11 presumed innocent until proven guilty beyond a reasonable doubt can present problems for Indigenous practices that encourage offenders to accept responsibility for their actions.  It can also entail a social cost in the form of Indigenous offenders exploiting the high standard of proof to get off for crimes for which they may be factually guilty.  This social cost may be especially acute for Indigenous communities that are plagued by problems such as intergenerational sexual abuse, substance abuse, and organized crime.  At the same time, the presumption of innocence has the legitimate objective of avoiding the risk of convicting the possibly innocent.  The proposal is that proof beyond a reasonable doubt be replaced by the use of consensus, either by members of the community or by a panel of community court judges, as to whether an accused is guilty.  This is meant to comport roughly with the traditional concept that the community at large is satisfied that a community member committed an offence.    The right to adversarial procedures during a trial can be perceived as furthering tensions between community members where Indigenous visions of justice strive to further harmony.  The right to cross-examine can also involve cultural faux pas since it often involves a confrontational approach to questioning a witness.  The proposal is that the scope of when truly adversarial trials be used should be narrowed down to when there is a live issue as to whether the accused did anything to begin with (e.g. cases based on circumstantial evidence), and no longer applicable to where it is apparent the accused committed a harmful act but the reasons why remain unclear (e.g. self-defence, acting while intoxicated).  Cross-examination during truly adversarial trials can be restructured in a narrative format that resembles traditional story telling to avoid cultural faux pas.   12  Chapter 11 deals with Charter rights that apply while matters are still at an investigative stage.  The right against unreasonable search and seizure is designed to prevent the establishment of a police state by excluding what people may reasonably expect to be their own private affairs (e.g. their homes, their persons, their belongings) from police scrutiny, subject to judicial authority authorizing a search based on reasonable and probable grounds.  This may significantly curtail the ability of modern Indigenous police forces to protect the public against threats to the collective good, such as substance abuse and gang activity.  The proposal is that Charter jurisprudence on what citizens can reasonably expect to be kept private from the state provides an ideal mechanism to address Indigenous concerns, since Indigenous perspectives can enter the analysis.  For example, Indigenous notions of collective property holding mean that a local Elder can permit a warrantless search of a suspect’s home.  Legitimate threats to collective well-being, such as gang activity, can justify warrantless searches where officers nonetheless have a reasonable basis to suspect the occurrence of the activity.  The right to silence may involve direct conflict with Indigenous truth speaking traditions that required crime suspects to express their side of the story to community leaders.  The resolution is that Indigenous accuseds can assert their right to silence against police authorities during the investigative stage.  When matters come to the trial phase, the accusers must present a bona fide case to meet against the accused.  If a community court judge decides that there is a case to meet, the truth speaking tradition becomes operative and the accused must explain his or her side of the story.    The right to counsel may be problematic in more than one way.  Some Indigenous societies did have a concept of a representative spokesperson for an accused, but others   13 did not.  The right to counsel may therefore represent a form of external imposition.  There are also circumstances in which a defence lawyer’s duty of advocacy can present difficulties for Indigenous processes with a restorative emphasis, since the client’s best interests and the interests of the community are not necessarily harmonious to begin with.  One approach to resolving this is to incorporate the Australian concept of a prisoner’s friend, someone who can safeguard an accused’s rights during the investigative stage but is not necessarily a member of the bar.  Another approach is to modify the role of the accused’s advocate.  If an Indigenous accused willingly participates in a process with a restorative emphasis, the role of his or her spokesperson ceases to be that of a true advocate.  The spokesperson becomes more of a resource person for the accused.  The spokesperson nonetheless can resume true advocacy if he or she notices an abuse of natural justice against the accused, and can then assist the accused with an appeal.  Chapter 12 concerns Charter rights involved with final resolution of a case.  If any Indigenous communities want to adapt execution or corporal punishment for contemporary use, both are expressly prohibited by Supreme Court’s treatment of the right against cruel and unusual punishment.  One resolution is for the prohibition against execution to remain in force.  This is an admittedly arbitrary call, but one that is motivated by a recognition that no remedy would be personally available to an innocent person if he or she were wrongfully executed.  Another resolution is that an offender may consent to corporal punishment after he or she is apprised of the potential risks. (e.g. permanent scarring)  This allows Indigenous communities to implement meaningful alternatives to incarceration, subject to Charter standards of waiver.   14  The exclusion of evidence is problematic for a number of reasons.  The concept of excluding relevant evidence as a check against state power is alien to any traditional Indigenous vision of justice.  It may be culturally illegitimate in the eyes of an Indigenous community.  Canadian jurisprudence is heavily tipped in favour of excluding evidence if it is deemed conscripted from the accused, without consideration of other potentially relevant factors such as Indigenous cultural perspectives.  It can also entail social costs to Indigenous communities since excluding relevant evidence can mean factually guilty Indigenous accuseds getting off without any sanction.  The proposal is that exclusion of evidence be reserved for the most serious cases where the Charter violation was such that the evidence itself becomes unreliable, a coerced confession for example.  For other cases, the proposal is that s. 24(1), the general remedial provision of the Charter, be available as an alternative source of remedy.  Possible remedies can include fines, warnings to the police, suspensions of officers who violate the Charter, and damages awarded to the accused, while relevant evidence may still be included in the proceedings. The proposals should not be thought of as binding on Indigenous communities and the one and only way of doing things.  They are intended to provide springboards for future discussions and legal reform.  Each community may see different feathers from Raven, receive different teachings from Raven, and travel different pathways as Raven journeys alongside them to meet their own particular circumstances and needs.    But before we can understand how Raven will grow new feathers, or think long and hard about these issues, or embark upon the new journey, we must first understand what Raven taught in the past – how Indigenous peoples practiced justice in the past.     15 CHAPTER 2: INDIGENOUS JUSTICE IN THE PAST 2.1  Preliminary Observations This chapter provides a brief overview of how some Indigenous societies dealt with crime in the past.  But first, two preliminary observations are in order.  One observation is that a complete catalogue of past justice practices among all Indigenous societies in all their diversity is far beyond the scope of this work.  This dissertation will settle for describing a selective sampling of Indigenous approaches to justice that have been previously examined and studied.  Another observation relates to the difficulties involved with reliance upon those studies.  Our knowledge of Indigenous justice practices depends upon information collected through disciplines such as anthropology, history, and sociology.  Those disciplines may encounter methodological difficulties in the search for Indigenous lore such as to suggest caution to us.  Bruce Miller, an anthropologist, states that there are significant problems in ascertaining what traditional law and practice might have been.4  For example, he explains that there are difficulties involved with relying on memory culture in an effort to reconstruct the past.  In his study, many of the Coast Salish Elders that he spoke with ‘grew up in circumstances that limited their access to justice practices.’  Many of them attended residential schools which removed them from opportunities to observe how their communities resolved conflicts.  These schools, as well as government agents, worked to disrupt the practice and the transmission between generations of their culture.5  Michael Coyle also states:                                                  4 Bruce Miller, The Problem of Justice: Tradition and Law in the Coast Salish World (Lincoln and London: University of Nebraska Press, 2001) at 5.  5 Ibid. at 55-56.   16 … two warnings should be given.  First, this paper speaks only of what we know about the traditional justice ways of Ontario Indians on the basis of written records.  Usually, therefore, the historical source is non-Indian.  Often the writer is someone, such as a trading post manager or a missionary, who may not have been particularly interested either in investigating the intricacies of the social organization of the Indians or in discovering that their social organization was a complex or effective one.  Occasionally, on the other hand, a historical writer is biased in the opposite direction, inventing or glorifying aspects of traditional Indian society for ulterior purposes.  Critical judgment of such historical testimony is especially important given the scarcity of the records available.6   It has been suggested that there is something inherently questionable in having Indigenous knowledge represented by non-Indigenous scholars, however well-intentioned those scholars may be, and that something is inevitably distorted or lost in the process.  Roger Keesing, in performing ethnographical work among the Kwaio of Australia, admits as much in this manner: Just as the ethnographer can never be an invisible presence, so that author aspiring to let the locals speak for themselves can never do so.  As I have argued, it is always we who choose, orchestrate, paste together the pieces for our own rhetorical purposes.  And inevitably, as I doubtless have done, we place ourselves in a carefully constructed chiaroscuro of self-justification or self-glorification, however we may proclaim our faiblesse.7  Mary Ellen Turpel-Lafond also states that academic efforts to describe Indigenous knowledge reveal more about the cataloguer than the subject.8  Linda Tuwihai Smith goes even further and suggests that ethnographical studies of Indigenous cultures and lore have been a tool of colonialism.  The West exercises a monopoly on the representation of collected information about Indigenous cultures.  Academic methodologies and studies reflect Western agendas and interests.  They essentialize Indigenous peoples, and contrast them with Western societies.  The scholarship justifies the superiority of the West relative to Indigenous peoples, whether in the imperial past (i.e. Indigenous peoples as savages) or in the present (i.e. unable to come up with their own solutions, hopelessly corrupt).                                                   6 Michael Coyle, “Traditional Indian Justice in Ontario: A Role for the Present?” (1986) 24 Osgoode Hall L.J. 605 at 613. 7 Roger Keesing, Custom and Confrontation: The Kwaio Struggle for Cultural Autonomy (Chicago: University of Chicago Press, 1992) at 13. 8 Mary Ellen Turpel-Lafond, "Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences," (1989-1990) Can. H.R.Y.B. 2 at 30.   17 Smith’s solution is the creation of ‘Indigenous research cultures’ that require ethnographical descriptions of Indigenous cultures be carried out by Indigenous scholars.9 The methodological difficulties that are inevitable for such studies suggest that parts of the picture may be missing or inaccurate.  We may never fully understand how a particular Indigenous group dealt with crime in the past.  These problems may suggest that caution should be used in relying on the use of such materials.  Even so, this dissertation will still need a foundation in existing literature that describes past Indigenous justice practices.  The question becomes how to make use of such literature in good conscience while still being mindful of the problems that have been described.    Certain ethnographical materials, which will be listed shortly, will be used to describe a representative sampling of past justice practices amongst a diverse selection of Indigenous peoples.  The starting point is the contents of the materials, including their descriptions of past Indigenous justice practices, will be accepted as is.  This may sound intellectually dishonest or even lazy, but it is also necessary for at least two reasons.  The first reason is that there has to be some basis on which to describe Indigenous justice practices in the past.  In a sense, the studies that will be used are available, and by and large commend themselves for use practically by default.  Secondly, whatever lingering concerns we may feel about their potential inaccuracies, there is no getting around the obvious problem that ascertaining a more accurate portrayal of the Indigenous past is frequently impossible.  This is definitely the case where the studies rely on centuries old descriptions of past justice practices.                                                    9 Linda Tuwihai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (New York: Zed Books, 1999).   18 This is not to say that accepting the studies at face value is done with blinders on.  This work will insist that before using a study, that study must pass muster under at least one of four criteria of utility.  These criteria of utility do not satisfactorily address concerns over accuracy or methodology from the perspective of the anthropologist or the historian.  The point is to hopefully minimize any controversies stemming from potential inaccuracies or methodological difficulties by grounding reliance on a study on whether it is consistent with what Indigenous people (or at least many of them) honestly believe about how their ancestors practiced justice.  This work is after all about what Indigenous peoples want out of justice, making this a sensible approach.  The first criteria asks whether there is consistency between what a study says about the justice practices of an Indigenous group’s ancestors, and the beliefs and practices of contemporary members of that group.  An example of this will be described.  Michael Coyle’s article, “Traditional Indian Justice in Ontario: A Role for the Present?”, may seem suspect in that it relies on historical archives and descriptions that date back centuries.  Those archives and descriptions were also produced by observers whose honesty or objectivity may invite suspicion.  Coyle admits as much.  Consider however that Cree communities frequently make use of sentencing circles with the idea of grassroots community involvement in resolving a criminal conflict.  It can therefore be reasonable to accept as useful Coyle’s description of Cree peoples in the past using village councils that involved the entire community to resolve serious conflicts.10  The natural supposition is that present day Cree make use of sentencing circles in the belief that they are a modern adaptation of a past practice, the village councils.  Studies that                                                  10 Supra note 6 at 618-624.   19 pass this criterion include but are not limited to the historical descriptions used in Coyle’s article, and Joan Ryan’s study of the Dene, titled Doing Things the Right Way.11   The second criterion is whether the work was written by an Indigenous scholar.  This is by no means a guarantee of accuracy, but it does insist that a written work be produced more or less within an Indigenous research culture, to answer Tuwihai Smith’s objection, whereby the study is carried out by an Indigenous scholar and with respect for Indigenous perspectives.  Studies that pass this criterion include but are not limited to Douglas George Kanentiio’s Iroquois Culture and Commentary12, and Moana Jackson’s The Maori and the Criminal Justice System, He Whaipaanga Hou – A New Perspective.13  The third criterion asks whether the study involves recording first person accounts of justice practices from Indigenous persons.  This of course does not address certain methodological difficulties such as fallibility of memory.  It does however involve a representation of what the Indigenous peoples themselves honestly believed about past justice practices.  An example of this will be described.  Karl Llewellyn and Edward Adamson’s study, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence, may seem unreliable because it is an older study.  The presence of the word ‘primitive’ in the title also suggests that the authors hold a rather condescending view towards Cheyenne culture.  The book does nonetheless record descriptions of past Cheyenne practices provided by Cheyenne participants.14  An appropriate way to use the study may be to not make use of any arguments or conclusions drawn by Llewellyn or                                                  11 Joan Ryan, Doing Things the Right Way (Calgary: University of Calgary Press, Arctic Institute of North America, 1995). 12 Douglas George-Kanentiio, Iroquois Culture and Commentary (Santa Fe, New Mexico: Clear Light Publishers, 2000). 13 Moana Jackson, The Maori and the Criminal Justice System, He Whaipaanga Hou – A New Perspective Part 2 (Auckland: New Zealand Department of Justice, 1988). 14 Karl Llewellyn & Edward Adamson, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941).   20 Adamson, but limit the use instead to the first hand accounts provided by the Cheyenne themselves.  Other studies that pass this criterion include but are not limited to Joan Ryan’s study, Jo-Anne Fiske and Betty Patrick’s Cis Dideen Kat: The Way of the Lake Babine Nation15, Rennard Strickland’s Fire and the Spirits: Cherokee Law from Clan to Court16, Bruce Miller’s The Problem of Justice: Tradition and Law in the Coast Salish World17, Brad Asher’s Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853-188918, and Leslie Jane McMillan’s Koqqwaja’ltimk: Mi’kmaq Legal Consciousness.19 Another criterion of utility is whether the study was the product of a collaborative effort between the researchers and an Indigenous community.  What this means is that decisions about research methodologies, who will be interviewed, funding, organization, hiring, and the final contents of the study, are made by consensus (or near consensus) among the researchers and community representatives.  Joan Ryan relates that her study was the product of a collaborative empirical research system known as Participatory Action Research.  She describes that system, while acknowledging its challenges, as follows: PAR is a process whereby all members of the team share power, responsibility, and decision-making and co-operate fully to make sure the goals of the project are realized.  It is not an easy process and the group’s inter-action has to be negotiated so that there is true sharing of power in all matters.  PAR works only by consensus.20  Fiske and Patrick’s study is another example.                                                    15 Jo-Anne Fiske & Betty Patrick, Cis Dideen Kat: The Way of the Lake Babine Nation (Vancouver: U.B.C. Press, 2000). 16 Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975). 17 Miller, supra note 4. 18 Brad Asher, Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853-1889. 19 Leslie Jane McMillan, Koqqwaja’ltimk: Mi’kmaq Legal Consciousness (Doctoral Dissertation) (Department of Anthropology, U.B.C. 2002). 20 Ryan, supra note 11 at 7.   21 These criteria may appear to have different emphases that can be inconsistent with each other.  In the end though, they share a common thread.  They insist, in one way or another, on consistency between the descriptions of past Indigenous justice practices and what contemporary Indigenous peoples honestly believed regarding how their ancestors practiced justice.  The goal is that the descriptions contained in the studies can be used as is with a minimum of controversy. With a methodology for using the studies in place, we now turn to a representative description of past Indigenous justice practices.   2.2  Past Indigenous Approaches to Justice  A common practice among many Indigenous societies was the holding of a council to resolve a conflict.  A typical practice in these councils was the presentation of material gifts to the victim, or the victim’s kin, as reparation for the offence.  These gifts were often accompanied by apologies, or acknowledgements of responsibility.  The acceptance of the gifts by an aggrieved party would signify the resolution of the conflict, and the restoration of community harmony.  This practice is known to have occurred among the Cree21, the Ojibway,22 the Iroquois,23 the Dene,24 the Twanas, Clallams, the Puyallups, the Nisquallys,25 the Mi’kmaq in New Brunswick,26 and the Coast Salish in British Columbia.27  In some Indigenous societies, the offender’s clan bore collective responsibility for the offence, while the victim’s clan was due the reparation.  This concept was often an effective deterrent against deviant behaviour, because it meant that the offender brought shame upon the clan and was directly accountable to clan leaders.                                                   21 Coyle, supra note 6 at 618-624. 22 Ibid. 23 Ibid. 24 Ryan, supra note 11 at 33. 25 Asher, supra note 18 at 25-26. 26 McMillan, supra note 19 at 74. 27 Miller, supra note 4 at 63-64.   22 This was certainly true of the Iroquois, where reparation at council meetings was often given in the form of wampum beads, which were of special symbolic significance.28 Indigenous societies in what is now British Columbia, such as the Gitskan, the Wet’suwet’en, the Coast Salish, and the Lake Babine, integrated dispute resolution into their ceremonial feasts.  The feasts served many functions, including debt settlement, social celebrations, confirming the authority and responsibilities of leaders, and the renewal of relationships and alliances between kinship groups.  The ceremonial feasts also provided the forum for resolving disputes, which were typically resolved by reparation to the clan of the injured party.29  Fiske and Patrick’s study of the Lake Babine ceremonial feasts, termed Balhats, provides additional details.  The first step was for the aggrieved party to present gifts to the offending party along with a declaration of what the offender did wrong.  The challenge was for the offending party to provide reparation to the aggrieved party in the form of material wealth with interest.  The reparation would be accompanied by a public affirmation of proper and expected behaviour, and a final recounting of the infraction after which it was never to be mentioned again.  These elements blended together to mark reconciliation and an end to the conflict.  The ultimate goal was the strengthening of social relationships within the community.30 Moana Jackson describes Maori approaches to conflict resolution as follows: The traditional Maori ideals of law have their basis in a religious and mystical weave which was codified into oral traditions and sacred beliefs.  They made up a system based upon a spiritual order which was nevertheless developed in a rational and practical way to deal with questions of mana [authority], security, and social stability.  Like all legal matters, it covered both collective and more specifically individual matters.  They were thus precedents embodied in the                                                  28 Coyle, supra note 6 at 620-621. 29  For the Gitskan and Wet’suwet’en, see Justice Alan McEachern in Delgamuukw v. R. in Right of British Columbia and Attorney General of Canada, Transcript of Proceedings, vol. 2 at 83 (13 May 1987).  For the Sto:lo, see Miller, supra note 4 at 150.  The Coast Salish lived in both what is now British Columbia and Washington State.  See Miller again at 150. 30  Fiske & Patrick, supra note 15 at 97-101.   23 laws of Tangaroa.  There were also specific but interrelated laws dealing with dispute settlement, and the assessment and enforcement of community sanctions for offences against good order.   The particular reasons why certain people might act in breach of social controls, the “causes” of “offending,” were understood within the same philosophical framework which shaped the laws themselves.  Anti-social behaviour resulted from an imbalance in the spiritual, emotional, or physical well-being of an individual or whanau [family or clan]; the laws to correct that behaviour grew from a process of balance which acknowledged the links between all forces and all conduct.  In this sense, the “causes” of imbalance, the motives for offending, had to be addressed if any dispute was to be resolved – in the process of restoration, they assumed more importance than the offence itself. …   Sanctions imposed for any infringement aimed to restore this balance.  Thus the whanau of the offender was made aware of its shared responsibilities, that of the victim was reparation to restore it to its proper place, and the ancestors were appeased by the acceptance of the precedents which they had laid down …   The precedents were refined over time and their application proceeded on a clearly different basis to that of Western jurisprudence.  However, they provided a sense of legal control which was effective because it had a unifying basis that recognized the need for social order and the value of balancing community affairs.31  Terms such as relationship reparation and reconciliation should be understood generously.  If a process led to previously hostile parties becoming friendly and co-operative with each other, that was all well and good.  The objectives behind Indigenous processes may often have been more modest, such as preventing hostilities from reaching a critical point that would lead to more violence, or preventing competition from endangering resources that the community needed to survive.32    However, community meetings, reparation, and the promotion of harmony, were not the only elements of Indigenous justice practices.  Many Indigenous societies also had significant punitive inclinations.  Turpel-Lafond and Monture-Angus describe banishment as the most severe remedy under Indigenous justice systems, since it involved ‘the end of social and cultural life with one’s community.’33  This was indeed a common thread among Indigenous societies, often a last resort for someone who just                                                  31 Moana Jackson, supra note 13 at 36-44;  See also Juan Tauri & Alliso