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Autonomous aboriginal criminal justice and the Charter of Rights Johnston, William Wayne 1992

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AUTONOMOUS ABORIGINAL CRIMINAL JUSTICEandTHE CHARTER OF RIGHTSbyWILLIAM WAYNE JOHNSTON Q.C.B.A., Memorial University of Newfoundland, 1964LL. B., Queen’s University 1968A. ThESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTERS OF LAWinTHE FACULTY OF GRADUATE STUDIESFACULTY OF LAWWe accept this thesis as conformingto the required standard‘THE UNIVERSITY OF BRITISH COLUMBIAJune 1992© WILLIAM WAYNE JOHNSTONIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.VDepartment of kJ.The University of British ColumbiaVancouver, CanadaDate______________DE-6 (2/88)IIABSTRACTThe imminent recognition of an inherent Aboriginal right to self-government signals the beginning of the reversal of a colonization processwhich threatened the cultural survival of a people. The Report of the AboriginalJustice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates anautonomous Aboriginal criminal justice system as a significant component ofthis cultural revitalization. This Aboriginal criminal justice system would differmarkedly from the conventional system in giving priority to collective rights overconflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginalvalues and advocates a “tailor-made” Aboriginal charter that would incorporate“only those fundamental freedoms and civil liberties that do not violate thebeliefs and paramount collective rights of the Aboriginal peoples.”The conventional justice system’s paramount concern for individualrights is premised on the potential of punishment. The Inquiry’s starklycontrasting paramount emphasis on colleôtive rights is premised on anAboriginal view of justice which this thesis refers to as the “harmony ethos”:The underlying philosophy in Aboriginal.societies indealing with crime was the resolution of disputes, thehealing of wounds and the restoration of socialharmony. . . Atonement and restoration of harmonywere the goals - not punishment.The tension between individual and collective rights apparent in theproposal of the Inquiry is the specific focus of this thesis. The colonizationprocess may justify a separate Aboriginal justice system. However, the harmonyethos premise, while appropriate to the mediation-reconciliation communitarianmodel of justice advocated by the Inquiry, blinds the Inquiry to the additional,and crucially different, adjudicative-rights imperatives of the contemporaryAboriginal society.Actually existing Indianism reveals conflict-generating fault lines in theharmony premise which challenge the sufficiency of the Inquiry’s group-basedIlljustice paradigm and indicate a need and desire for an adjudication justicecomponent and concomitant Charter values.This adjudication hiatus in the Inquiry position is a reflection of a similarvoid in historical Aboriginal justice which challenges the asserted rationale ofcultural survival for the paramountcy of collective rights in the contemporaryAboriginal justice system. This historical adjudication hiatus does not precludea separate Aboriginal justice system, but favours the inclusion of Charter valuesto strengthen an adjudication cultural foundation which is frail relative to itsreconciliation-mediation strength.This thesis is a modest attempt to address the interface between twosystems; one mature, but in need of change, the other, fledging and in need ofassistance. The Charter provides a ready and flexible framework to join theAboriginal community both to the larger society and to the unlanded Aboriginaldiaspora by principled standards of justice. These fundamental indicia offairness, recognized by all civilized self-governing units, constitute no significantthreat to the cultural survival of the Aboriginal mediation justice heritage, whilebuttressing its inherent adjudication frailty.IVTABLE OF CONTENTSABSTRACT IIINTRODUCTION XIACKNOWLEDGEMENTS XCHAPTER 1-THE COLONIZATION PROCESS 1INTRODUCTION 1PART 1: THE COLONIZATION PROCESS lbIntroduction lbSubjugation 5Economic 6Political 8Irrelevance 8Cultural 10Modern Acceleration of the Process 12Effects: Crime and Self-Determination 14Crime: The Mi’kmac Example 16Self-Determination: The KI uskus Example 18PART 2: EVOLUTION OF SELF-GOVERNMENT 20Inertia and Fundamental Change 22Demand for Change 24PART 3: EVOLUTION OF AUTONOMOUS JUSTICE 26The Edmonton Conference 27Inertia 27Fundamental Change 28The Inquiry: Relative Isolation 29VContrasting Positions .31Federal 31The Penner Report 33Law Reform Commission of Canada 34The Royal Commission on Aboriginal Peoples 34The Canadian Human Rights Commission 35The Australian Law Reform Commission 36The Marshall Report 37The Cawsey Report 37Ontario 38Manitoba 38Saskatchewan 39Brish Columbia 40Conclusion 40CHAPTER 2 - BASIC CONCEPTS & ABORIGINAL CRIME 42INTRODUCTION 42PART 1: BASIC CONCEPTS 42Harmony Ethos 42Introduction 42Aboriginal Concept of Justice 42Aboriginal World View 43Conventional System Alien 44Actual ly Existing Indianism 46Adjudication Hiatus 47Introduction 47Mediation 47VIAdjudication .49Conclusion 50PART 2: CRIME IN THE ABORIGINAL COMMUNITY 51Introduction 51Minor crime 54Major Crime 57CONCLUSION 62CHAPTER 3 - COLLECTIVE AND INDIVIDUAL RIGHTS:SECTION 25 64INTRODUCTION 64Term inology Confusion 65Skepticism About Group Rights 67Recognition of Group Values 70Possibility of Tyranny of the Group 72Contemporary Example of the Possibility 73Section 25: Focus of the Issue 76PART1:RIGHTS 77lndMdual Rights 77Aboriginal Justice: Mediation v. Adjudication 80Corn munitarianism 81Aboriginal Person: Different World View 83The Tyranny Problem 83BalkanizationCommunity-Constituting Understanding 86The Aboriginal Community 87DiasporaVIIRationale for Collective Right: Cultural Survival 89Precedent for Cultural Survival Rationale 93The Group as Holder of the Right 95PART 2: SECTION 25 97Section 25: Cultural Survival and the Indian Act 97The Interface: A Principled Balance 99The Weighted Wording of Section 25 102Moving the Fulcrum 102“Minor” Collective Rights? 103“Unacceptable” Exercise of Collective Rights? 103Historical Indianism: Adjudication Hiatus 1 04aCHAPTER 4 - THE INQUIRY: ADJUDICATION HIATUS 105INTRODUCTION 105PART 1: FAULT LINES IN HARMONY ETHOS 106Introduction 106Sharing 109Community-Constituting Understanding 112Erosion of Traditional Authority 116Youth 116Diaspora 117Discrete and Insular Minorities 122Law and Order Attitudes 123Women 125Tyranny 126Rule of Men or Law 132PART TWO: LOCALNESS 134VIIIBias . 135Abuse of Power .136Mediation v. Adjudication 138CHAPTER 5 - HISTORICAL ADJUDICATION HIATUS:CHARTER VALUES & CULTURAL SURVIVAL 146INTRODUCTION 146HIATUS 149“Law’ - “Ends” and “Means “ 149Fairness - the Individual 154Mediation Heritage - Adjudication Impasse 155CHARTER VALUES 163“Not Guilty” - Dishonest or Guarantor of Fairness 163Adversarial System: Truth and Fairness 164Benefit All 165CULTURAL SURVIVAL 166CONCLUS ION 167Justifying Inquiry Position: Sections 1, 25 or 33 169Section 1 169Section 25 173Section 33 175Synthesis 177BIBUOGRAPHY 188Articles 188Books 191Cases 192Newspaper Articles (signed) 194Newspaper Articles (unsigned) .196Reports . 198Other .199IxACKNOWLEDGEMENTSI would like to thank Professor Curt Griffiths, of the School of Criminology,Simon Fraser University, who graciously made the considerable resources ofthe library of the Northern Justice Institute available to me. I would also like tothank my wife, Marion, who tolerated a husband in law school in the 60’s andnever dreamed she would do it again in the 90’s - the same husband.W. W. JohnstonJune, 1992xINTRODUCTIONThe Aboriginal peoples of Canada advocate self-government to reversethe oppressive effects of centuries of economic, political and culturalsubjugation by the dominant descendants of the original colonizers. AnAboriginal criminal justice system is a component of this revitalization processwhich would address the over-representation of Aboriginals in the conventionalsystem as a result of this colonization process.At the heart of the Aboriginal drive for recognition of the inherent right toself-government and a special place within Canada is the illusive concept of a“collective right” to distinctive forms of self-governance, including a criminaljustice system, as a matter of cultural survival.”Both self-government and justice initiatives vary in their suggesteddegree of autonomy from the structures, procedures and values of the dominantsociety. This thesis focuses on the Report of the Aboriginal Justice Inquiry ofManitoba: The Justice System and Aboriginal People,1 which is the mostcomprehensive, autonomous and recent of the Aboriginal criminal justicesuggestions. The Inquiry departs most significantly from the precepts ofconventional criminal justice by advocating the displacement of the CanadianCharter of Rights and Freedoms,2with its emphasis on individual rights, by a“tailor-made”3Aboriginal charter which would accord paramountcy to collectiverights over conflicting individual rights in the criminal law context.This thesis is an examination of the relevance of the Charter to anotherwise autonomous Aboriginal criminal justice system implementedpursuant to a collective right to self-determination in the interests of cultural1 Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People(Winnipeg, Queens Printer, August 12, 1991) (Commissioners: Associate Chief Judge A.CHamilton and Associate Chief Judge C.M.Sindair) [hereinafter Inquiry].2 Canadian Charter of ghts and Freedoms, Part 1 of the Constitution Act. 1982. beingSchedufe B of the Canada Act 1982 (UK) 1982, c. 11 [hereinafter Charter].3 Inquiry, supra. note 1 at 335.survival. To the extent that, presently, there is no comprehensive Aboriginalcriminal justice system in place, no public draft of an Aboriginal Charter,possibly no such thing in law as a collective right to anything, and a paucity ofinformation on historical Aboriginal justice mechanisms and their relationship, ifany, to Aboriginal cultural survival, this thesis embarks on relatively unchartedwaters. When it finally returns to port, the conclusion is that the Charter does notthreaten the culturally distinct survival of otherwise autonomous Aboriginalcriminal justice processes. It is submitted that an effective, contemporaryAboriginal criminal justice system would be a synthesis, or, “principledinteraction”4or middle way between two differently oriented justice systems thatwould draw from the respective strength and wisdom of each as identified in thisthesis.This thesis will use conventional historical, political and sociologicalsources to examine the colonization process, the evolution of the self-government movement as a reaction to that process, the nature of Aboriginalcriminality engendered by that process, and traditional Aboriginal justicemechanisms extant before the advent of that process. The evolution ofautonomous justice initiatives and the relatively radical position of the Inquirytherein, is explored by reference to other inquiries, commissions, conferencesand commentary. The meagre jurisprudence on the concept of a collective rightis augmented by reference to philosophical and historical sources. Sections 1,25 and 33 of the Charter are analyzed in light of the rationales developed in thisthesis for individual rights, collective rights and the paramountcy of the one overthe other.The pace of political developments in this area has quickened even asthis thesis is written. Therefore the research for this thesis leans heavily onnewspaper reports for the most recent developments. These are also used toattempt to measure, principally the reaction of the Aboriginal, but also that of thelarger community, to the emerging realization of the possibility of an Aboriginalcriminal justice system which may not be subject to the Charter.‘ Unlocking Aboriginal Justice: Alternative Dispute Resolution for the Gitksan and Wet’suet’enPeople (A proposal to the B.C. Ministry of the Attorney General by the Gitksan and Wet’suet’enEducation Society, and others, March 1985) ,summary, [unpublishedjlbCHAPTER 1THE COLONIZATION PROCESSINTRODUCTIONIt is an accepted fact that Aboriginal people are over-represented in thecriminal justice system. The Report of the Aboriginal Justice Inquiry ofManitoba1 refers to this obvious fact as “shocking.2Jackson adds, “In the caseof the statistics regarding the impact of the criminal justice system on nativepeople the figures are so stark and appalling that the magnitude of the problemcan be neither misunderstood nor interpreted away.”3There is general acceptance of the conclusion of the Australian LawReform Commission that NThe primary reasons for this disproportionaterepresentation lie outside the criminal justice system.”4The proximate cause of what the Inquiry concedes is “a higher rate ofcrime among Aboriginal people”5 may be poverty and alcohol, however thesewell-known correlates of crime are themselves the product of what Jacksonrefers to as the historical process of “colonization”6 involving the1Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People(Winnipeg, Queen’s Printer, August 12, 1991) (Commissioners: Associate Chief Judge A.CHamilton and Associate Chief Judge C.M.Sinclair) [hereinafter Inquiry]2 Ibid. , at 85.3 Michael Jackson, “Locking Up Natives in Canada” (1989) 23: 2 U.BC. L. Rev.215 at 218.4 Australian Law Reform Commission, The Recognition of Aboriginal Customa,y Laws, ReportNo. 31 (Canberra: Australian Government Publishing Services, 1986) (hereinafter AustralianReport) referred to in Jackson Ibid. , at 217.Inquiry , supra., note 1 at 88.6Jackson, supra., note3at 218.2“dispossession” and “marginalization” of Aboriginal people over time. The grossover-representation of Aboriginals in the justice system is attributable to thecumulative effects of this colonizing experience tainting generations of victims.The 1ong list”7 of 9ndices of disorganization and deprivation,”8 includingalcoholism and crime, is an inevitable and probably universal response to theunilateral imposition of grossly disruptive and disempowering pressures on aresistant, but increasingly irrelevant, minority. Despair, alcoholism, loss of self-respect, abuse, suicide and crime are outward manifestations of a deeperpersonal and collective damage which, like the miners’ canaries, “are telling usthat something is very wrong.”9The fundamental solution to this problem involves “the reversal of thatprocess”’° by implementing an Aboriginal right to self-government, which wouldinclude a justice component as part of this revitalization.Both self-government and justice initiatives vary in the suggested degreeof autonomy from the structures, procedures and values of the dominant society.This thesis focuses on the response of the Inquiry, which, as the mostautonomous of the justice suggestions, poses the greatest challenge toconventional assumptions about criminal justice. Mere reform of the existingsystem is rejected by the Inquiry because “. . . past efforts at reforming thejustice system such as having more Aboriginal people in the system. . . have notbrought about significant improvements.’ I “Simply . . improving what isinherently a flawed approach to justice is not, in our view the answer.”’2 Theautonomous answer of the Inquiry is summarized as follows:‘ Ibid. , at 218.8 Ibid. ,at219.Terrance Armstrong, “Suicide Points to Collapse of Nation” The Vancouver Sun (4 October1991) A3.10 Jackson, supra. , note 3 at 218.11 inqui,y, supra, note 1 at 254.12 Ibid. ,at 252.3Each Aboriginal community in Canada may establish anAboriginal court system as and when it considers itself ready to doso. This court will have exclusive jurisdiction within its territory overall persons, Aboriginal and non-Aboriginal. The law to be appliedin these courts would be the criminal code established by thegoverning body of each community which may include suchprovisions of present federal and provincial laws as eachcommunity chooses to adopt. The procedure in these courts willbe according to Aboriginal common law as amended by thecommunity government. These laws and procedures may besubject to the provisions of an Aboriginal charter of rights enactedby each community which would incorporate only those individualrights of the Canadian Charter of Rights and Freedoms 13 whichare not inconsistent with paramount Aboriginal collective rights.14It must be stated that this summary represents the extreme potentialscope of an Aboriginal justice system which is intended to be staged in at timessuitable to the capacity and interest of each community; however, uthe importantpoint to keep in mind is that it would be up to the Aboriginal people and theirgovernments to make those decisions.”15It must also be stated that the Inquiry’s position on the optional status ofthe Charter is tempered by an acknowledgement that “a growing number ofAboriginal people have come to accept the attractions of an emphasis onindividual rights and liberties.”16 This concern leads to the above-describedsuggestion of a tailor-made Aboriginal charter which would accommodate suchrights, however, subject always to the paramountcy of Aboriginal collectiverights.In apparently anxious anticipation of the Inquiry position, Bryan Schwartzexpressed concern about rhetorical excess and “against going too far in thedirection of separatism and special status” in these terms:13 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B of the Canada. Act 1982 (U.K), 1982, c. 11 [hereinafter Charter].14 Inquiry ,supra , note 1 at 318, 319, 734 re territorial jurisdiction; 320, 321, 734 re jurisdictionover the person; 323, 325 326, 642 re subject matter jurisdiction and 333-336 re application ofthe Charter.15 Ibid. , at 326.16 Ibid. , at 334.4It may be tempting for the Inquiry to act as an uncritical advocate ofseparate structures of justice for aboriginal people. Such aproposal would appear bold, original, and responsive toaboriginal demands for more self-government . . . Almost anypublic inquiry might consider a strategy of deliberateoverstatement. Governments can be seen as so inert andinsensitive that a radical proposal may be seen as necessary tomake moderate progress.17This chapter examines the colonization process and the self-determination response in order to place the Inquiry position in perspective.Part one describes the general process, which is illustrated by representativespecific examples in order to better understand the urgent demand to reversethe process: NIf we refuse to acknowledge the past, we conceal the nature ofsuffering, and therefore cannot understand the demands of the present.”18 Parttwo traces the development of self-government to the brink of constitutionalentrenchment to meet the justifiable demands of the present. Part three surveysthe evolution of Aboriginal justice initiatives as a relatively recent component ofthe self-government movement, culminating in the response of the Inquiry. TheInquiry position will be shown to be “bold” and “radical” in the context of thisevolution and, it will be argued, is in part, a reaction to governmental inertia onpreviously less aggressive and challenging suggestions.PART 1: THE COLONIZATION PROCESSINTRODUCTIONAt first the white man is seen to furnish the obvious products of progressin metal, fabric, shot and glass. The Aboriginal enthusiastically adapted to hisneeds the tools, yard goods, guns and even the beads. At first the white mantook away only furs, sea otters and various fruits of the sea and land. But it wasthe white man’s nature to seek and exploit riches and eventually to colonize,expand and control. In this process the original inhabitants of the land were17 Bryan Schwartz, “A Separate Aboriginal Justice System?” [1990] Man. L.J.77 at 90.18 H. Brody, Maps and Dreams (Vancouver, Douglas and Mcintyre, 1988) at xiv.5dispossessed, shifted and marginalized to a progressively smaller, meaner andmore irrelevant physical and psychic space.The initial trade was largely mutually satisfactory, but buried in the holdsof the ships and in the hearts and intentions of the ships’ masters and theirsuccessors were more insidious things. Some, like disease, were unknown andunintended. Some, like alcohol, were delivered with maliciously selfish intent.Others, like Christianity, were offered with mixed motives of salvation andcultural genocide. Some, like education, were imposed, again with mixedmotives of civilizing, changing and smothering a culture.Mere goods, resources, and even land, if unfairly taken away, are in amore enlightened day, potentially compensable, at least in part. But the processof colonization took away much more than was immediately apparent. It stolespirit, self-respect, identity and independence. These precious commoditiescannot be given back for they are not ours to give. They are not necessarily lost,but only the original owners can retrieve them.Chief Justice Dickson has laid the foundation for Aboriginal rightslitigation and negotiation by making it clear that the Crown will be held, “to ahigh standard of honourable dealing with respect to the aboriginal peoples ofCanada. .“‘ In shaping the future in his last decision on Aboriginal rights, theChief Justice recalled the past, “. . . over the years the rights of the Indians wereoften honoured in the breach •“2 He adopts the words of MacDonald J. inPasco v. C.N.R.,21 “We cannot recount with much pride the treatment accordedto the native people of this country.”22The repeated themes of the colonization process confirm this indictment.SUBJUGATION19 Reg. v. Sparrow , (1990) 56 C. C. C. (3d) 263 at 288.20 Ibid. , at 283:21 (1985), 69 B.C.L.R. 76 at 79.22 Sparrow, supra. , note 18 at 283.6EconomicThere is a so-called ‘optimum period” in the early phase of white contactwhen the original inhabitants, ‘have sufficient of the white man’s materialcivilization to ease the burden of life, but yet not enough to disrupt their way oflife.’23 The natives were, by and large, astute businessmen and in the earlydays of the sea otter trade in British Columbia, for example, would refuse totrade for inferior goods and simply wait for a better ship to come along.24 Thus,for many, tools and firearms were adapted by choice and integrated into a moreefficient, yet familiar lifestyle.Yet, even at this early ‘beneficial’ stage, the process of ultimatelydisintegrating cultural change is beginning. Adams describes the negativeimpact in the mid 1700s of the reception of the horse and gun into the plainsIndian society.25 The increased hunting efficiency and mobility transformed alocalized agricultural and pedestrian hunting economy into a nomadic culturewith a single unrenewable resource, the buffalo. Fur trapping introducedcompetition for the white man’s goods and individualized profit-making intosocieties based on sharing and equality.26 The fur trade infrastructuredemanded skills of all kinds and provided jobs and thus wages to Indians forthe first time.27 Economic dependency on the larger society is begun. Thisinitiates a weakening of the traditional communitarian ethic of sharing and leadsto the development of the more competitive wage and welfare environment ofthe later stages of the colonization process as will be outlined in chapter four.23 E.P. Patterson, The Canadian Indian: A Histo,y Since 1500, (Don Mills, Collier-Macmillan,1972) at 94, quoting J. Anderson, “Eastern Cree Indians”, Historical and Scientific Society ofManitoba, Papers, Series Ill, No. 11(1956) at 31.24 Professor Michael Kew, Anthropology Lecture (Vancouver, University of British Columbia, 2October 1991) [unpublished].25 Howard Adams, Prison of Grass: Canada from a Native Point of View (Saskatoon, Fifth House,1989 ).at 21-22.26 Ibid.27 See, ibid. , c. 3.7The buffalo disappeared more or less coincident with the completion ofthe railroad and massive settlement of the Northwest28with the result that treatyand reserve ‘negotiation’ was often an unequal process, ‘Once the buffalo weregone, the native people were reduced to complete dependency on whites, andthe treaties served to justify the seizure of Indian lands.’29 Whether the treatiesshould be viewed in this way as unfair, or perhaps more accurately as fair, butunfulfilled, the consequence is the same. In order to make room for our railroad,settlement and agriculture, the native is shunted to a place of our choosing, withhunting access to his former territory subject to our regulations. Economicdependency is virtually assured.28 Ibid. at 60-61.29 Ibid. at 61.8PoliticalIn the early days of the fur trade the Hudson’s Bay Company controls themarket and, in effect, runs a very large company town.3° It becomes in a veryreal sense the government with “full power to make laws and enforce them.”31This political dependency is continued in the later reserve period by the Indianagent and the Indian Act which emasculate the positions of chief and localcouncil, which were often alien to Indian culture in any event. Before contact,and for periods thereafter which vary as one moves west and north, theAboriginal was in every sense self-governing. However the Indian Acteffectively stifled any such local initiative with its paternalistic pretensions of“protection” and “advancement” revealingly explained by Duncan Scott in 1931as meaning that, “Protection from vices which were not his own, and instructionin peaceful occupations, foreign to his natural bent, were to be substituted fornecessary generosity.”32 Under this centralized administration, effective controlin the form of budgets and priorities was outside the community. Reservesdeveloped “white compounds”33 housing the critical decision makers hired bythe dominant society: nurses by Health and Welfare; teachers by Indian Affairs;police by the RCMP.and the Hudson’s Bay manager by head office. Localcouncil decisions were subject to ministerial veto. Since reserve lands could notbe seized as collateral for a loan, Indians were effectively barred frommortgaging their land, their one resource , to finance new economic ventures.34Political and economic dependency are joined.Irrelevance30 See, ibid. ,c.3andc.5.31 Ibid. , at 23.- 32 Patterson, supra , note 23 at 136.Geoffrey York, The Dispossessed: Life and Death in Native Canada (U.K., Lester and Orpen,1989) at 6.Ibid. ,at58.9Once the Aboriginal community had been displaced to reserves to servethe needs of the larger society, it thereby ceased to be an economic or politicalfactor to be reckoned with and enters a ‘period of irrelevance’35 which runsroughly from the Indian Act of 1876 to the Trudeau White Paper 36 in 1969.Assimilation was assumed or fostered: ‘their number was small and exercisedno influence at the ballot box.’37 Underfunded outside bureaucratic controlfostered predictable neglect by the Indian department whose ‘job was simply toadminister, and like many a custodian, it was so involved in the routine of itsadministration that it forgot the purpose of its custodianship.’38This period of political and economic irrelevance was approximatelymirrored by a legal hiatus from the St. Catherine Milling case in 1 889 to theCalder case in 1973, during which period ‘the Canadian law of native rightswent into an almost total eclipse. . . and ceased to exist in the minds of the legal‘41Patterson, supra , note 23 at 25.36 Dept. of Indian Affairs and Northern Development, Statement of the Government of Canada onIndian Policy, 1969.‘ Patterson, supra , note 23 at 27, quoting Diamond Jeness: “Canada’s Indians Yesterday, Whatof Today” (1954) XX Canadian Journal of Economics and Political Science, at 99.38 Ibid.St. Catherine Milling And Lumber Company v. The Queen (1889) 14 A.C. 46 (J .C. P.C.).40 Calderv. Attorney-General of B. C. [1973] S.C.R.313.41 Michael.Jackson, “The Articulation of Native Rights in Canada” (1984)18: 2 U.B.C. L. Rev. 255at 267.10CulturalThe white man’s mission was not only to tame, develop, exploit and settlethe land, ‘but also to bring its original owners to ‘civilization’.’42 It is during theperiod of irrelevance that the economic and political subjugation of a people iscontinued on a massive modern scale, accompanied by a pervasive andinsidious acculturation resulting in the ‘ossification’43 of native society. Verylittle of whatever constitutes ‘cultural identity’ and a sense of personal worthand distinctiveness is left untouched or unaffected. It is this comprehensivethreat to ‘cultural survival’ which underlies the argument for ‘collective rights’which will be addressed in chapter three.A dehumanizing, ‘grinding paternalism’ made reserves resemble prisonswhere the Indian agent controlled passes to the outside world, opened personalmail and, ‘managed the reserve people’s personal business as officialbusiness.’44One of the most effective and shameful instruments of cultural oppressionwas the residential school, ‘There is little doubt that the federal governmentregarded the Indian residential schools as the key weapon in a long-term planto destroy all vestiges of Indian culture.’45 This policy extended through fivegenerations of Indian families to the 1960’s and the personal and culturaldevastation cannot be underestimated.4642 Bradford Morse and David Nahwegahbow, The Interaction Between Environmental LawEnforcement and Aboriginal and Treaty Rights in Canada, (paper prepared for the Law ReformCommission of Cariada,1 985) at 144 [unpublished].43Adams, supm, note 25 at 35.lbid. ,at4l.45\York, supra, note 33 at 32.46 See, Rudy Platiel, “‘Impact of Colonization’ Felt for Generations, Erasmus Says,TM The Globeand Mail (5 June 1992) at A6.11The children were indoctrinated with white culture while their own wasactively repressed: native foods were denigrated and thrown out;47 thespeaking of Native languages was punished and, 9t is estimated that 50 ofCanada’s 53 native languages are in danger of extinction.48 Indian braidedhair was cut off;49 Indian rituals were denigrated5°and Indian names wereanglicized.5’Doris Sperling52 adds revealing personal observations to thisexperience. She points out that birthdays passed unobserved and letters fromhome were discouraged, TMWe would learn of the death of a pet on our returnhome. Children were brought up in unnatural, sexually segregatedcommunities where dating patterns were non-existent and Nschools wereapprentice courses in abuse.” Recent studies confirm her anecdotalobservations and suggest that, “as many as eighty per cent of the Indians hadbeen sexually abused at church- run schools.N53 She adds that children werebrought up by outsiders without parental models and parents were left behind inunnaturally childless communities.The products of the residential school and their offspring were oftendestined for instability, “When I had been stripped of all pride, self-respect, andself-confidence, I was told to make something of myself.”54 Psychologists havecoined the term “residential school syndromes to describe the symptoms of a‘ York, supra, note 33 at 34.Ibid. ,at36.ibid. , at 4050 Ibid. , at 425 Adams, supra , note 24 at 39.52 Doris Sperling, Criminology Address, (Burnaby, Simon Fraser University, 21 October 1991)[unpublished].York, supra, note 33 at 30.54Ibid. ,at4O.12lost culture, Nsomething they were born with, a part of their soul, was wiped outby the missionaries and the teachers.TM55Modern Acceleration of the ProcessThe dispossession of frontier days accelerates during the period ofirrelevance in response to the insatiable demands of the industrialized society:• especially after the Second World War, native communities have beenassaulted by northern industrial development.TM56 The term TMassault” is notinappropriate as much of this intrusion into the Aboriginal way of life has takenplace without the degree of consultation or compensation that Chief JusticeDickson includes as part of the justification analysis established in Sparrow. ‘The industrialized society needs aluminum, copper, gold, oil, logs, pulpand a host of other primary products, which are often located on or accessedthrough traditional Aboriginal land and reserves. Major industrial projectsgenerate roads, pipelines, air strips, seismic lines, trailer camps,settlement,hunters and tourists that are insinuated into the Aboriginal lifestyle. Suchprogress is powered by hydro, which often results in flooding of Aboriginalhunting territories and a shattering of the Aboriginal resources and economy.These impacts are interconnected and cumulative and suffocate a promised58and promising59 lifestyle. Some typical examples follow to make the point that551b1d. ,at37.56ibid.,at1l9‘ Reg, v Sparrow, supra , note 22 at 296.58The appellant’s factum in Delgamuukw develops the argument that the oral negotiationssurrounding treaty making often amounted to a promise not to interfere with the hunting andfishing lifestyle. For example, Treaty Commissioner Morris in 1876 referring to Treaty No. 3:“Understand me, I do not want to interfere with your hunting and fishing. . . What I offer does nottake away your living, you will have it then as you have now, and what I offer now is put on top of it.”Appellants’ Factum, Delgamuukw v. A. G. of B. C. et al. (1987), para. 265, reproduced in MichaelJackson, Native Peoples and the Law. (Vancouver, University of British Columbia , 1992) at 172.In Maps and Dreams, supra , note 18, Brody documents in detail the actual economic value ofwhat might otherwise appear to be an anachronistic hunting and trapping lifestyle. In addition ,heportrays how for many, the trapline life embodies “lndianess”and independence.13the result, too often, is wrenching dislocation, seething discontent and socialdysfunction. It is this common experience which reduces the attractiveness ofthe ‘voluntary exit’ defence of collective rights, referred to in chapter five, whichmaintains that optional exit from the group minimizes concern about the internalprocedures of the group.In 1952, a Carrier reserve disappeared under water in order to providepower to Kitimat, British Columbia, to smelt aluminum, causing the loss offishing stations, trapping cabins and hunting trails. It was said that, ‘the bones oftheir ancestors floated away.’6° In 1962, a dozen Sekani villages weresubmerged as a result of the W.A C. Bennett Dam61 without meaningfulgovernment compensation or aid. In 1963, massive flooding of the Moose Lakeand Chemawawin reserves in Manitoba virtually destroyed a traditional nativeeconomy62 and the the people were relocated to, ‘one of the mostuninhabitable and depressing places one could imagine,’63 living in houses‘jammed together on a small patch of land.’64In the 1970’s, in Northern Saskatchewan, uranium mining, with attendantroads and development, effectively terminated the traditional hunting andfishing economy of the Chipewyan Indians which, because of their isolation,had remained undisturbed for centuries.65In Northern Quebec, a Cree band has been shunted repeatedly from1951 to the 1970s to make room for copper, gold mining and logging.6660 York, supra , note 33 at 120.61 Ibid. at 120.62 Ibid. ,at 108-109.Ibid. , at 112.Ibid. , at 108.65 Ibid. ,at 115-117.Ibid. ,at 121.14In the 1980s, the oil companies ‘roared67 into the Lubicon land inAlberta and the welfare roll went from ten per cent to ninety per cent 68 as theresult of the destruction of a hitherto self-sufficient, and perhaps moreimportantly, self-identifying, hunting and trapping lifestyle.EFFECTS: CRIME AND SELF-DETERMINATIONThe themes revealed by the above broadly drawn incidents will not applyequally to all Aboriginal groups. The Canadian Aboriginal society is itself amulticultural one encompassing a wide diversity of groups distinguished fromeach other historically, linguistically, geographically and politically. Suchindividual incidents on closer analysis may well bear an interpretation which ismore favourable to the honour of the Crown. However, the overall perception ofthe cumulative impact of such events unites the Aboriginal community in thecommon experience of a process of economic, political and cultural subjugationwhich results in both an individual and a collective trauma.The individual impact is felt in the chaos of massive social dysfunction:The Indian Act, with its restrictions on Native autonomy, and the reservesystem, with its patchwork of tiny reserves on infertile land, have locked Indiansinto a cycle of unemployment, overcrowding, poor health, and dependence onwelfare.u69 This surfaces in fairly obvious ways as ennui, despair, alcoholviolence and crime.70 An observer of Indian society on a Manitoulin Islandreserve in the 19th century used language which reverberates with implicationsfor to-day:we have taken the work out of their hands, and all motive to work,while we have created wants which they cannot supply. We haveclothed them in blankets- we have not taught them to weaveblankets, we have substituted guns for the bow and arrows - but67 Ibid. , at 127.Ibid.69 Ibid. at 79.70 Erasmus refers to a “correlation between.. . the loss of culture. . . and prisons,” Platiel, supra.,note 46.15they cannot make guns; for the natural progress of arts andcivilization springing from within, and from their own intelligenceand resources, we have substituted a sort of civilization fromwithout, foreign to their habits, manners, and organization: we aremaking paupers of them.71This is also a collective trauma because such seemingly inexorableevents impact in each case on a relatively small, tightly knit group, whichsenses a loss of control with a concomitant loss of group or cultural identity. Theloss of the ability of the group to control, or even influence, important day to daydecisions, is accompanied by a loss of group identity as alien persons andinstitutions supplant the traditional. The Canadian Bar Association refers to thisloss of control as a product of “democratic totalitarianism” involving exclusion ona collective basis, “where a minority group can be consistently excluded fromparticipation in issues affecting its existence.”72 It is this collective experiencewhich contributes to a “community-constituting understanding” about theobjective of regaining control, which chapter three refers to as a pre-conditionfor the finding of a “collective right” so to do.The colonization process generates a legitimate, yet, it is submitted,almost desperate need for control and self-government. At the same time, itproduces a veritable breeding ground for crime which would challenge anyjustice system, conventional or Aboriginal. It is these pressing themes whichconverge in the Inquiry call for autonomous justice. The reality of these twothemes might better “penetrate a twentieth century consciousness “‘ byparticular reference to the experience of two peoples, separated widely in timeand space,. but united by the common thread of the colonization experience.The Mi’kmac illustrate to some degree the criminogenic effect, and the Kluskusthe self-determination impetus, generated by the colonization process. Theyalso illustrate the potential of the revitalization movement to correct theirrelevance of the past.71 Patterson, supra , note 23 at 87.72 Rebuilding A Canadian Consensus: An Analysis of the Federal Government’s Proposals For ARenewed Canada (Ottawa, December, 1991) at 71.Brody, supra , note 18 at xiii.16Crime: The Mi’kmac ExampleAt the time of Cartier’s visit, almost five centuries ago, the Mi’kmac livedan independent existence throughout all of Nova Scotia and the coastal area ofNew Brunswick.74 The colonization process, including disease andgenocide,76 accelerated by the Loyalist influx of settlers and increasingpressure on traditional lands, was such that by the end of the eighteenthcentury, government reports indicate that they had become ‘economicallydependenr77and,’.. . almost the whole Mi’kmac population are now vagrants,who wander from place to place and door to door seeking alms.’78The first reserve was created in Nova Scotia in 1786 and by the 1 830smost of the Mi’kmac were ‘forced to ‘settle down or starv&. . . to surrenderhimself to dependency upon the white man and to accept land on areservation.’79 In 1882 the ancestors of Donald Marshall Jr.8° were shunted tothe newly created Kings Road Reserve located on 2 acres along the SydneyRiver near what is now downtown Sydney.81 The reserve was small but at leastsupported their fishing based culture. In 1888, two-thirds of an acre wasexpropriated for a railway. By 1915, 122 Mi’kmacs were living on the remainingone-third acre.Patterson, supra , note 23 at 59.Ibid. ,at 57-61.76 York, supra , note 33 at 56.‘‘ Patterson, supra, note 23 at 64.78 York, supra , note 33 at 56.Patterson, supra , note 23 at 65.80 Royal Commission on the Donald Marshall, Jr., Prosecution, Volume 1: Findings andRecommendations (Province of Nova Scotia, December, 1989) (Commissioners: Chief Justice A.Hickman; Associate Chief Justice L. Poitras and The Honourable Mr.G Evans) (HereinafterMarshall Report) at 161.81 See, York, supra , note 33, c. 3, “Inside the Reserves.”17In 1915, partially to satisfy the white need for prime urban real estate, butafter the formality of an Exchequer Court of Canada hearing, they wererelocated to the Membertou reserve, a 66 acre site described as ‘a worthlessplot of swamp, rocks and woodlands’82 which had no access to water. TheMi’kmac objection was explicit: ‘The feeling of being close to the water. . . avital element in the Mi’kmac culture. . . was taken away from the people. It’s likebeing chained.’83 Since they could not vote, they were irrelevant and politicallypowerless to oppose the dislocation.In 1944, after a federal inquiry into ‘the Indian problem’, a centralizingpolicy was effected to ‘simplify’84 white bureaucratic administration of reserves.This policy was abandoned in 1949, but not before as many as 50 per cent of allMi’kmacs in Nova Scotia were uprooted, ‘their homes, farm buildings, andschools burned to the ground.’85 They were crammed into one of two reserves,Eskasoni and Shubenacadie, which are described as remote from majormarkets and too small and unproductive for the populations. Some formerreserves totally disappeared and Membertou stagnated.In spite of being reduced to a fraction of its former territory, the King’sRoad reserve was a functioning community. A Sydney magistrate testified atthe 1915 hearing that, ‘only seven Mi’kmacs had appeared before him in theprevious ten years,’86 and the presiding justice found them to be ‘reasonablywell behaved.’87 The Marshall Report studied Eskasoni, Shubenacadie andMembertou and, after referring to Jackson’s characterization of the process ofcolonization as “at the root of horrendous figures relating to Native people in thecriminal justice system,’88 confirmed that the rates of unemployment, suicide,821bfrJ ,at64.Ibid.Ibid. ,at65.851bid. ,at66.86 IbicL ,at 62.871b,d. ,at63.88 Marshall Report, Supra , note 80 at 162.18assault, impaired driving and incarceration are all “significantly higher than inthe non-Indian population.’89Such a result should not have come as a surprize. At the time of the planto relocate his band to Eskasoni, the Membertou chief, “predicted quiteaccurately, that centralization would lead to an increase in drunkenness andlawlessness.’9°By 1953, three-quarters of the Eskasoni band are described asdependent on welfare, drinking heavier and, “changing their attitudes towardhelping each other.’91 A 1980 study found the death rate from cirrhosis of theliver at Shubenacadie to be fourteen times the national average and aspokesman for the Union of Nova Scotia Indians described the socialconditions as “just a breeding ground for alcohol and drugs.’92The process continues to this day, but the Aboriginal, as a result of therevitalization process, is no longer considered irrelevant. A Sydney companyhas proposed a quarry on Kelly’s Mountain not far from Membertou. TheMi’kmac consider this to be a significant spiritual place. Their concerns haveresulted in the establishment of an assessment review panel to which aMi’kmac has been appointed.93Self-Determination: The Kluskus ExampleBrody refers to ‘an appalling and vicious colonialism”94 and documentshow the Beaver of Northeast British Columbia adapted to successive waves ofindustrial frontiers by retreating within their own territory, “progressively89 Ibid. , at 163.90 York, supra , note 33 at 66.91 Ibid.,at67.92Ibid. ,at68.“Natives Quarrel with Quarry Proposal” The Vancouver Sun (8 January 1992) A8.Brody, supra , note 18 at xiv.19restricted to the edges, and even to pockets at the edges ‘ as ‘the old north’became ‘the new west.’96 He establishes that there is a minimum physical andpsychological Aboriginal cultural survival unit such that retreat andaccommodation, ‘can continue only so long as there are places, domains andselves that are large and secure, and into which they can still retreat . . . everyIndian knows that countless accommodations have been made; most of themfeel that there is no space and no time to withdraw further.’97Kew details a telling contemporary illustration of a people who couldretreat no further and felt they had to resort to collective civil disobedience topreserve their identity and assert control over their lives.98The Kluskus are a Southern Carrier people who had traditionally livedand prospered on the Frazer river in central British Columbia. The discovery ofgold in this area in 1858 brought the usual boom town mentality, disease andalcohol. White prospectors inundated the area. Farming along the Frazerfollowed to feed the ever expanding settlements. Game resources weredisrupted and massively exploited. Placer mining silted the salmon spawninggrounds and damming the Quesnel river, to provide water for the placer mines,obstructed the run.By the turn of the century, the Kiuskus had adapted to this intrusion bymoving from the prime Frazer river land to the refuge of the high plateau thoughtto be less attractive to whites. Here, they adapted to their new circumstances bydeveloping a highly satisfactory and self-sufficient lifestyle, combining huntingfishing and horse herding supplemented by wage labour.This functioning independence was effectively ended by the concurrencein the 1950’s and 1960’s of outside influences in the form of drasticallydeclining fur prices, the expansion of the forestry industry to supply the post-warIbid. , at 96.961b1d, ,atll6-117.Ibid. , at 98.98 Kew, supra , note 24 (Lectures and slides; 8, 13 and 15 November 1991)[unpublished].20building boom and the growth of social services in the form of familyallowances, unemployment and welfareOnce again, the Kiuskus compliantly moved even further west to theirpresent site, but, in the early 1970’s, progress again reached their verydoorstop. A timber license was granted unilaterally and without consultationover land immediately adjacent to their village, which they felt would threatentheir water supply. A new town-site to service the timber expansion wasplanned for very nearby.However, by this time, the revitalization wave had reached even theKluskus, who were now politically informed through their association with therecently formed Union of British Columbia Indian Chiefs.99 The band councillearned to write protest letters and had started to organize a land claim, all to noavail, when, without advance notice, the bulldozers arrived to start a loggingaccess road. It is insensitive acts such as these that moved Brody to warn that:To shove, be it gently or forcibly, a person who stands in themiddle of a field is one thing, but to shove someone who stands atthe edge of a cliff is quite another.100The Kluskus men, women and children placed their bodies in front of thebulldozers. Thus did ordinary people find themselves manning a barricade in amodest act of civil disobedience that joined them in purpose and motive withGhandi, King, Tolstoy and Thoreau.101PART 2: EVOLUTION OF SELF-GOVERNMENTSee, Paul Tennant , Aboriginal Peoples and Politics: The Indian Land Question in BritishColumbia, 1849-1989, (Vancouver, University of British Columbia Press,1990), c. 12, “TheFormation of the New Organizations, 1969-71 U100 Brody, supra, note 18 at 246.101 Arthur Ripstein, “Breaking the Rules for a Reason” The Globe and Mall (11 September 1990)at Al 7.21Issues such as treaties, land title, hunting and fishing rights and thepreservation of Aboriginal culture had ‘long been features of a catalogue ofIndian concerns’102 but, during the period of irrelevance, did not impact on thenon-Indian public. However, in the second half of the twentieth century, self-government, the reversal of the process,103 gradually emerged as a solution tothe disempowering impact of the colonization process.104 It intensified into ademand in the 1970s, in response to the apparently assimilationist rejection ofspecial status by the White Paper, which aroused ‘massive Indianopposition’:105 ‘No single action by any government since Confederation hasaroused such a violent reaction from Indian people - never have Indians felt sobitter and frustrated as they do today.’106 This demand was facilitated by the1970s constitutional wrangling107 and by the Supreme Court of Canada’srecognition in Calder of at least the existence of Aboriginal title at commonlaw.108 This water-shed judgement effectively ended the period of irrelevanceby prompting what Justice Dickson, in the equally seminal judgement inSparrow, understatedly referred to as, ‘a reassessment of the position being102 Patterson , supra. note 23 at 41; and see: Tennant, supra , note 99, c. 5, where thesedemands, and the demand for self-government generally, are documented from the late 1880’s inBritish Columbia.103 Jackson, supra , note 10.104 C.E.S. Franks, ed. ,Aboriginal Peoples and Constitutional Reform: Background Paper 12,(Institute of Intergovernmental Relations, Kingston, 1987) at 20; and see: Douglas Sanders, “TheRenewal of Indian Special Status’ in Bayefsky and Eberts, eds, Equality Rights and The CanadianCharter of Rights and Freedoms, 529.105 Sanders, Ibid. , at 539.106 Patterson, supra , note 23 at 178.107 R. Gibbins and J. Ponting , “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada” in, Alan Cairns and Cynthia Williams, Research Coordinators, The Politicsof Gender, Ethnicity and Language In Canada (University of Toronto Press, Toronto,1984) 171at 173.108 Reg. v Calder, supra, note 40.22taken by the government.TM109 A TMcritically important role”11°was played by thePenner Report of 1983 which advocated self-government and control asessential. . . to ensure their cultural survivaLNill It became TMthe catch-phrase ofthe 80’s112 as a major concern of the First Minister’s conferences of 1983,1984, 1985 and 1987, which were constitutionally mandated to identify anddefine existing aboriginal and treaty rightsTM that had been affirmed by theConstitution Act, 1982.113 In 1991, British Columbia Chief Justice JusticeMcEachern was apparently reluctant to endorse the concept of self-governmentin the case of Delgamuukw, where his diagnosis was that, 9t is obvious theymust make their way off the reserves.114 This obiter was at least ill-timed,however, for on April 9, 1992, in an historic breakthrough,TM the federal andprovincial governments unanimously announced that they would agree torecognize the inherent right to self-government.115 After a long and tortuouspath, it appears116 that this issue has come to at least conceptual fruition. Inrecognition of its importance as TMthe issue upon which the resolution of otherissues depends,TM117 minds must now turn to the details of, and principled limitsto, this right, which is the focus of this thesis.INERTIA AND FUNDAMENTAL CHANGE109 Reg. v. Sparrow, supra , note 19 at 284; and see: J. Frideres, Native Peoples in Canada:Contemporaiy Conflicts (Scarborough, Prentice-Hall, 1988, 3rd. ed.) at 93 and 341.110 Gibbins and Ponting, supra , note 107 at 174.111 House of Commons Report of the Special Committee on Indian Self-Government in Canada(1983) (hereinafter Penner Report) at 35.112 Morse and Nahwegahbow, supra , note 42 at 2.113 The Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 1,sections 37, 37(1) and 35.114 Delgamuukw v.A. G. of B. C. eta!. [1991] 3 W.W.R. 97 at 478.(B.C.S.C.).115 Susan Delacourt, “Natives Promised Self-government” The Globe and Mall (10 April 1992) atAl, quoting Premier Rae.116 It is unclear at the time of writing whether the agreement will hold up in the absence ofagreement on senate reform.117 Gibbins and Ponting, supra , note 107 at 174.23The self-government movement is grounded in the evident failure of pastconventional responses. Despite a plethora of ‘new’ initiatives - ‘segregation’‘assimilation’ ‘devolution’ and numerous committees, task forces and royalcommissions, the ‘litany of tragic indices’ continued.118The Penner Report concluded that something very different was required,‘[the]. . . description of the severe.limitations of today’s bureaucratic solutionsmade the need for fundamental change clear.’119This fundamental change involved Aboriginal control to ensure culturalsurvival, an oft-repeated concept which is important to an understanding ofcollective rights: “Indian witnesses gave convincing testimony about theimportance of Indian control in areas central to the culture of First nations. Theyasserted that in some cases only Indian control of legislation and policy wouldensure the survival and development of Indian communities.’12°The recommendations of the Penner Report were never legislativelyrealized, but its themes dominated the First Ministers Conferences where Inuit,Metis, Status and Non-Status Indians respectively referred to: ‘the need tocontinue to survive as a distinct peoples in Canada,’121 ‘the right to self-government. . . your own institutions. . . the right to culture,”122 the right of theFirst Nations to their own self-identity . . . and to develop their own cultures”123and, ‘Our right to self-identity, the preservation and enhancement of culturesand customs, the protection of . . . the self-governing institutions which give fullcontrol over essential aspects of our lives.’124118 Morse and Nahwegahbow,supra, note 42 at 1.119 Penner Report, supra , note 111 at 27.120 Ibid. , at 27.121 Morse and Nahwegahbow,supra, note 42 at 27.122 Ibid. , at 28.123 Ibid. , at 29.124 Ibid. , at 30.24DEMAND FOR CHANGEDuring the latter period of this evolution the Aboriginal demand for self-government became insistent as more and more people, native and non-native,felt Brody’s ‘need to be clamorous on behalf of Indians.’125 Aboriginals areacutely aware of their history and determined to effect change. They can, andhave used, all pressure tactics known to the modern generation. Because theywork, these methods can be anticipated again if the expectations generated bythe recent historic breakthrough are not realized. York, in a chapter entitled ‘TheNew Militancy, U outlines the ever more familiar tactics, including blockades,126demonstrations,127boycotts,128 national129 and international130 publicity eventsand just plain politics.131 Additionally, ‘the major national Indian and Metisorganizations have articulate leaders, multi-million-dollar budgets, largenumbers of employees, teams of high-powered lawyers and constitutionalexperts, economic analysts, and media advisers.’132Adams refers to a ‘red awakening”133 and advocates “radicalnationalism,’134 which would involve ‘a sophisticated level of guerilla warfare,both urban and rural.’135 Brakel refers to the ‘extreme and xenophobic outlook’125 Brody, supra , note 18 at x.126 York, supra , note 33 at 253; B.C. , Haida block logging roads.127 Ibid. , at 238; Man. , Peguis re housing shortage.128 Ibid. , re underfunding of schools.129 Ibid. , at 251; 1,000 natives on “constitutional express to Ottawa re entrenchment of rights.130 Ibid. , at 278; Bishop Tutu visits Osnaburgh.131 Ibid. , at 273-275; Harper scuttles Meech Lake.132fl,jd ,at251.133 Adams, supra , note 25 at 157.134 Ibid. ,at 169.135 Ibid. ,at 187.25of’ ‘Red Muslims’ shouting ‘Red Power’.”36 Mark Maracle, who stood with theMohawk Warriors at Oka, adopts this theme in espousing the theories ofMalcolm X and stating, “The only time they (the white man) take notice is whenwe stand up and point a gun.”37George Erasmus, on the occasion of his re-election as national chief ofThe Assembly of First Nations in 1988, warned, ‘We say, Canada, deal with ustoday because our militant leaders are already born.’38 In 1991, Ovide Mercredisucceeded Mr. Erasmus on an election platform that included civil disobedience9f necessary,”39 and declared, ‘I will not allow the white man’s agenda todominate our lives.”40It is this context which, it is submitted, underlies the concern of Schwarzthat, ‘Almost any public inquiry might consider a strategy of deliberateoverstatement.”4’136 Samuel Brakel, American Indian Tribal Courts: The Costs of Separate Justice (American BarFoundation, 1978) at 2.137“Use ‘Any Means Necessary’ to Control Fate, Indians told” The Vancouver Sun (19 November1991) at A5.138 York, supra , note 33 at 259.139 David Olive, “Confrontation is Still the Bottom Line for Canada’s Natives” The Globe and Mail(15 June 1991) at D4.1 Don Gilimore, “Chief Justice” Saturday Night (March 1992) 15 at 16.141 Schwartz, supra, note 17.26PART 3: EVOLUTION OF AUTONOMOUS JUSTICEWhile the problem of Aboriginal over-representation in the criminaljustice system is obvious, effective solutions are more illusory: • . .there is avery extensive literature on the problem of minority over-representation inprison . no one has yet succeeded in finding an effective remedy to thisproblem.N142The contemporary solution of autonomous Aboriginal justice is relativelyNembryonic and inchoate”1and frustrates detailed analysis: “Regrettably, theliterature on aboriginal self-government in the Canadian context is sparse. It isrich in eloquent rhetoric and philosophy but largely lacking in rigorous analysisand specific, concrete proposals.N144 An even greater lack of analysis andconcrete proposals attends the issue of the relevance, if any, of the Charter toautonomous Aboriginal justice. This issue has only seriously arisen as a resultof the optional status for the Charter envisaged by the Inquiry and the proposedparamountcy of collective rights in any, as yet unpublished, Aboriginal charter.To the extent that this thesis concentrates on this aspect of the Inquiry position, itembarks on largely uncharted waters.142 Jean-Paul Brodeur, Carol La Prairie and Roger McDonnell,.Justice fOr the Cree: Final Report(Quebec, Cree Regional Authority, 1991) at 45 [hereinafter, Cree Report].143 Menno Boldt and J. Anthony Long, “Tribal Traditions and European Western PoliticalIdeologies: The Dilemma of Canada’s Native Indians”, in Menno Boldt and J. Anthony Long (inassociation with Leroy Little Bear) ,eds, The Quest for Justice: Aboriginal Peoples and AboriginalRights (Toronto, University of Toronto Press, 1984) 333 at 334, referring to the concept of“sovereignty”144 Gibbins and Ponting, supra , note 107 at 174.27THE EDMONTON CONFERENCEThe problem was significantly addressed for the first time in 1975, whenhigh-level decision-makers, 22 at the ministerial level, representing four federalgovernment departments and all provincial and territorial governments, met inEdmonton, with six national native organizations, many provincial nativeorganizations and native inmates.145 Native expectations were high, as a greatdeal of preparation and consultation had preceded the detailed and realisticproposals, which resulted in almost 200 recommendations.146 These wereextremely important and far-reaching initiatives which this thesis willnevertheless characterize, with no deprecatory intent, as “relatively mild,” orconventional improvements to the system, because they involved, in contrast tothe suggestions of the Inquiry, little challenge to the system itself. The bulk ofthese proposals centered instead on the need to train and involve natives in allaspects of the planning and delivery of justice, community involvement,diversion, alternatives to incarceration and cross-cultural training orsensitization of non-native personnel. There is no indication that an alternativejustice system even approximating the Inquiry position was an Aboriginalpriority at this time. A recommendation for a community-run, or “peacemaker”court, with minor offence jurisdiction as a limited adjunct to the existing system,appears to have been the most radical recommendation. Prophetically perhaps,“This recommendation was the only one the ministers refused to accept , evenin principle.”147INERTIA145 National Conference and the Federal - Provincial Conference on Native Peoples and theCriminal Justice System: Native peoples and Justice (Ottawa, Ministry of the Solicitor General,1975) (hereinafter, Edmonton Conference).146“Optimism Marks Edmonton Conference on Native Peoples and the Law” Liaison (March1975).147 Don McCaskill, Native People and the Justice System, (Paper presented to the NativeStudies Conference, Brandon University, November 5-7, 1981) at 11 [unpublished].28While the Edmonton Conference might be said to mark the beginning ofthe end of Aboriginal justice irrelevance, the issue does not truly flourish, ifpublished reports are any indication, until relatively very recently. Since 1975,approximately 25 reports have been published in Canada, however, 21 of thesehave appeared since 1984; 11 in 1988 and 1989 alone.148 Recommendationsof the relatively mild Edmonton Conference variety tend to be repeated, which iscandidly acknowledged by the Cawsey Report, published in 1991: “We havemade these recommendations again, because in our opinion they have notbeen implemented fully or appropriately and are still applicable.”149 TheCawsey Report recommendations are firmly rooted to sensitizing, rather thansupplanting, the existing system: “The Task Force recognizes that intensiveindigenization of the criminal justice system, including flexible approaches tosentencing, can, in fact, go a long way toward meeting the wishes of someAboriginal people.”15°The implementation of the Edmonton Conference proposals was“eagerly awaited,”151 and the failure to do so, as evidenced by their repetition insubsequent reports, was bitterly disappointing.152FUNDAMENTAL CHANGEit is submitted that this largely warranted frustration with official inactionand inertia, coinciding with the escalating and sometimes strident demands ofthe larger self-government movement outlined above, have played a part in148 See Justice on Trial: Report of the Task Force on the Criminal Justice System and Its Impacton the Indian and Metis People of Alberta, March 1991, (hereinafter, Cawsey Report). Volume Illof the Cawsey Report, at page 4-3, lists the reports from 1967 to 1990 to which are added thosepublished since and which will be referred to herein.149 Cawsey Report, Ibid. , Vol. I, Main Report, at 1-5.150 Ibid. ,at 1-7.151 Supra, note 146 at 2.152 See Christie Jefferson, Conquest by Law: A Betrayal of Justice in Canada (Burnaby, NorthernJustice Society, Simon Fraser University, 1988) [unpublished] at 267-271; and see: William T.Badcock, Update of Native Justice Issues, Phase II Report (Department of Justice , Ottawa, 1983)at 5.29propelling the Inquiry to the outside reaches of the spectrum of Aboriginaljustice autonomy. This thesis examines whether it has ‘overshot the mark.’153The Inquiry does take a ‘bold and radical’154 step in consciouslydisassociating itself from the conventional solutions of the past. It echoes thecall of the Penner Report for ‘fundamental change’155 through self-government,by advocating ‘major changes’156 as ‘the only appropriate response.’157 Itsresponse, to repeat, is to create a truly autonomous, self-contained, system ofAboriginal justice, rather than merely to implement the relatively mild version ofreforms to ‘what is inherently a flawed approach to justice,’Those have been the solutions preferred by governments in thepast, but it would seem that that approach has been unproductivefor government and unacceptable to Aboriginal people.158In justifying this fundamental change, it recalls the self-governmentmovement theme of Nthe continuing litany äf tragic indices,’159The situation involving Aboriginal people and the justice systemhas deteriorated , rather than improved , in the recent past.’6°ThE INQUIRY: RELATIVE ISOLATION153“An Assault on the Law, Not to Say Common Sense” The Globe and Mail (19 May 1992)referring to comments of Madame Justice McLachlin in R. v. Seaboyer [1991] 2 S.C.R. 577 at583.154 Schwartz, supra , note 17.155 Penner Report, supra , note 119.156 Inquiiy , supra , note 1 at 265.157 Ibid. ,at 336.158 Ibid. ,at 252.159 Supra, note 118.160 Inquiiy, supra,note 1 at 252.30The relatively mild or conventional versions of change meet no informedopposition in principle and will not be discussed in this thesis. The moreprogressive concepts are also not discussed in detail. Their necessity anddesirability seems increasingly obvious and acceptable as outlined by Jackson:over the past twenty years in Canada a growing understandinghas developed regarding the limitations on the traditional criminaljustice process and its reliance on imprisonment to furtherretributive and deterrent objectives. Furthermore, a consensus isemerging on the need to develop community based sanctions andnon-adversary processes which balance the interest of the victim,the offender, and the community. There is also a significant andgrowing body of opinion that restorative justice principles shouldplay a far more important role in criminal justice policy andpractice.16’In chapter five, this thesis argues further, that it may be possible tostructure an Aboriginal system that “bears the hallmarks of their own system,”’62as distinct from merely indigenizing the conventional system, wherein Chartervalues, as interpreted in the context of the Aboriginal system, form a principledbridge both to conventional justice, and to that significant portion of theunlanded Aboriginal community, which may be largely unable to avail itself ofthe benefits of self-government.However, the Inquiry position “. that the most appropriate course tofollow is not simply to establish a system of Aboriginal courts . . . , but toestablish fully functional Aboriginal justice systems,”’63 each potentially with itsown very different criminal laws and procedures, potentially beyond the scrutinyof individualist Charter values as a matter of local option, places it largely, butnot totally, apart. Other reports, government positions and, what is submitted isinformed and sensitive opinion within the white community, demonstrate thisrelative isolation. Chapter four refers to significant similar opposition within the161 Michael Jackson, In Search of the Pathways to Justice: Alternative Dispute Resolution inAboriginal Communities, (Paper prepared for the Law reform Commission of Canada, May 15,1991) at 54[unpublished].162bjrJ ,at9l.163 Inquiry, supra, note 1 at 256.31Aboriginal community itself, to autonomy without the Charter, particularly in thecriminal law context.CONTRASTING POSITIONSFederalBefore the recently raised possibility of resort to a section 33 “override”power,164 the federal government consistently insisted on the application of theCharter to Aboriginal justice. The proposal of the 1985 First Minister’sConference mirrored Hawthorne’s concept of “citizen-plus”165 in referring toAboriginal people as, “enjoying the rights that flow from their status asaboriginal peoples . .. as well as rights flowing from Canadian citizenship.”66The pre-April 9th’67 federal policy to improve Aboriginal justice reflected theconstitutional proposal of a delayed ujusticiableu right to self-government subjectto the Charter.’68 This policy, known as the “Native Agenda,” recognized theneed for self-government, but included the following guidelines:solutions must be found within the Constitution of Canada,present and future, as interpreted by the Supreme Court ofCanada. In this sense, it does not envisage an entirely separatesystem of justice for aboriginal peoples, although community164 Agreement to entrench this power was reported on May 12, 1992, however this was deniedthe following day by Alberta. See, Susan Delacourt, “Talks Shape Third Order of Government,The Globe and Mail (12 May 1992) at Al; and see, Tom Barrett, “Self-Rule for NativesUnresolved,” The Vancouver Sun (13 May 1992) at Al. The potential use of this power byAboriginal governments is discussed in chapter 5.165 H. Hawthorn, A Su,vey of the Contemporary Indians of Canada, Vol. 1 (1966) at 6.166 Boldt ,Long and Little Bear, supra , note 143 at 371.167 The “historic breakthrough” date, see, supra, note 115.168 Shaping Canada’s Future Together, (Ottawa, September 1991) in “A Constitutional Primer”The Globe and Mail (11 January 1992) at A6.32justice systems, for example, as connected to aboriginal self-government, are both possible and desirable.169All Canadians are entitled to the equal protection of the law andthe protections guaranteed by the Charter of Rights andFreedoms, but this in no way denies the importance of differentialtreatment of aboriginal individuals and communities as necessaryto ensure equality and respect for their unique and diversespiritual and cultural beliefs, aspirations and circumstances andtheir special place in Canada as reflected in the Constitution.17°aboriginal individuals are entitled to the equal protection of thelaw and the protections of the Charter of Rights and Freedoms,but should be treated in a manner that respects their uniquehistory, circumstances and cultures.171It will also be imperative that communities resolve the potentiallydifficult fit between the demands of procedural fairness andindependence and the traditional, less formal approaches whichmay inform new arrangements.172Like so many other players in this complex and rapidly evolving issue,except for the possibility of Aboriginal resort to section 33 of the Charter,173 thefederal government has yet to articulate the interface between the unitary andpluralistic aspects of justice administration which seem to rest so comfortablytogether in these political statements.The Globe and Mail, perhaps predictably, is less hesitant to fill the void:WWe resist on principle the idea of two different charters guaranteeing differentmeasures of justice depending on which race a Canadian is born into.’174169 Aboriginal People and Justice Administration : A Discussion Paper (presented to theconference TMAchieving JusticeN, Whitehorse, September 4-7, 1991) at 20.170 Ibid. , at 22171 lbid.,at26.172bid.,at3O.173 See, supra, note 164.174 Aboriginal Canadians and the Justice system” The Globe and Mail (3 August 1991) at D6.33The Penner ReportThe Penner Report was a “bold’175 step. In calling for a distinct third orderof government, it proved to be nine years ahead of its time and clearly inspiresthe Inquiry, However, it was’. . . most concerned with identifying directions inwhich reform efforts should move’ 176 and refers only minimally to justice issues.It concentrated on ‘three areas of critical concern,’177 which were education,child welfare and health. Its recommendations do include the power to legislatewith respect to ‘justice and law enforcement, ‘178 however, there is nodiscussion of what this means, or the relationship of the Charter to Aboriginalcourts, if they are included in that phrase.175 Sanders, supra , note 104 at 559.176 Gibbins and Ponting, supra , note 107 at 174.177 Penner Report, supra, note 111 at 27.178 Ibid. ,at64.34Law Reform Commission of CanadaThe Report of the Law Reform Commission, Aboriginal Peoples andCriminal Justice ,179 dated December, 1991, concentrates on conventional‘short-term’ ameliorative solutions, however, It departs significantly from its ownprevious emphasis on ‘the virtues of a uniform, consistent and comprehensiveapproach to law reform ‘180 and supports the creation of Aboriginal justicesystems ‘through a process of negotiation and agreement.’181 It poses the‘basic difficulty:’. . . can and must the rights of the person involved disappear inthe face of an assertion of the collective rights of the Aboriginal community? Amethod must be found to reconcile the legitimate rights of the individual withthose collective rights.’182 Its uncharacteristically cursory analysis concludesthat, ‘The question of determining to what extent Charter rights are negotiablecan hardly be avoided.’183 It does not, however, attempt to define theparameters of this negotiated reconciliation. It suggests that both sides to thenegotiation might benefit from a Reference to the Supreme Court of Canada forclarification of their respective positions.184 A Globe and Mail editorial rebukesthe commissioners’ supporting the concept of self-government, “without everadequately saying what they mean . . . The Law Reform Commission neverengages in such a serious examination. We were mistaken in assuming this tohave been their job.’185The Royal Commission on Aboriginal Peoples179 Law Reform Commission of Canada, Report no. 34,Aboriginal Peoples and Criminal Justice(Ottawa, Information Canada, 1991)180Ibi( ,atl.181 lbid.,at22.182 Ibid. at 20.183 Ibid.184 Ibid.185“Defining the Terms of Native Justice” The Globe and Mail (26 December 1991) at Al 4.35The Royal Commission on Aboriginal Peoples, established in August1991, is composed of seven commissioners, four of whom are Aboriginal. Twoof the non-Aboriginal members, former Supreme Court Justice Bertha Wilsonand former Saskatchewan premier Allan Blakney, are described as TMdeeplysympathetic to native perspectives.N186 Even though the commission has abroad mandate, a three year time frame; and, George Erasmus, the co-chair,had indicated that the commission, “would be cautious about stepping into theissue,’87 the commission has announced a position, in advance of anyhearings or evidence, that any inherent right to self-government should beucircumscribed “188 Again, as with so many statements in this area, it is notentirely clear what is meant by this, but it may imply a self-government positionlimited by Charter values: “You can word it in such a way that it is clear it’s aninherent right within the parameters of Canada and deal with the fact that thereshould be a co-existence and limiting factor of the right.N189The Canadian Human Rights CommissionThe Canadian Human Rights Commission expresses limited support foran autonomous solution, “. . but there must evidently be a basic level ofconsistency with national norms.”19° Recently, Commissioner Yalden insupporting self-government, nevertheless, Thoped once self-government wasobtained aboriginal nations would choose to operate in contemporary Canadaand adopt the Charter of Rights .“‘186 Jeffrey Simpson, “The Telling Nature of the New Royal Commission on Aboriginal Affairs” TheGlobe and Mall (30 August 1991) at A14,187 Rudy Platiel, “Native Panel Ponders Constitutional Role” The Globe and Mail (31 October1991)at A4.188 Rudy Platiel and Geoffrey York, “Native Rights Inherent, Panel Says The Globe and Mall (14February 1992) at A5.189 Ibid.190 Canadian Human Rights Commission,’lssues in Human Rights” Newsletter, (February.,1989).191 Charles Lewis, “Commission Backs Natives’ Demands For Self Government “The Globe andMail (27 March 1992) at A6.36The Australian Law Reform CommissionThe 1986 Report of the Australian Law Reform Commission192 waspreceded by almost ten years of hearings and research and . . . represents themost comprehensive review undertaken in any country of the problemsassociated with indigenous peoples and an imposed criminal justicesystem.’93 Its general recommendation was not in favour of a general schemeof autonomous Aboriginal courts for Australia. It did advocate particularsupplemental local justice mechanisms of various kinds, but was of the viewthat an election, or a right of appeal to the regular system, should be in place inorder to safeguard individual rights.194192 Supra, note 4.193 Jackson, supra , note 3 at 222.194 See Jackson, Ibid. , at 238-239.37The Marshall ReportThe Marshall Report,195 published in late 1989, expressly took a‘modest’196 approach, seeking a, ‘balance between the old and new ways’197in recommending an experimental section 107 summary conviction court. Itexpressly rejected an autonomous system:We do not propose a separate system of Native law, but rather adifferent process for administering on a reserve certain aspects ofthe criminal law. The laws enacted by Parliament and theLegislative Assembly will continue to apply to Natives, and thesafeguards for accused persons under the Charter would apply inany Native Criminal Court. . . An accommodation can be reachedbetween Native traditions, human rights law and the Charter, sothat the end result will be relevant to Native people and consistentwith the protections provided to all Canadians.’198The Cawsey ReportThe Cawsey Report199 released just months before the Inquiry,‘reiterates the principle that all Canadians are entitled to the protection of therule of law and to the protections provided by the Charter of Rights andFreedoms ‘200 and expressed concern that a person subject to any Aboriginalsystem of justice should be able to opt out of a tribal system.201 It declined to195 Supra, note 80.196 Ibid. , at 168.197 Ibid. ,at 169.198 Ibid. , at 168-169.199 Cawsey Report, Supra , note 148.200 Ibid., Vol. 1, at 1-2.201 Ibid., at 11-2.38advocate a parallel system on the basis that, TMwhether an Aboriginal JusticeSystem should exist and its scope and extent, is a matter for negotiation.”202OntarioThe Ontario government, arguably, has been quite progressive inAboriginal issues. It is one of the few governments to fund and continue a nativeadvisory council on justice issues,203 as recommended by the EdmontonConference, and all Ontario reserves are expected to have their own nativepolice forces within five years.204 However, it stops short of an optional Charter.At the First Ministers Conference in 1984, it supported native self-government tothe extent that it was compatible with the existing system: “there can be reformswithin the structure of the Canadian federal system which give Aboriginalpeople more control over their lives but without fragmenting our country andprovinces or our individual communities.”205Former Ontario attorney-general Ian Scott, now free of the constraints ofpublic office, while “widely viewed as sympathetic to the native cause,”206 wouldappear to insist on the application of the Charter as he is reported to consider it,“fundamental that common laws apply to both natives and non-natives alike.”207Manitoba202 Ibid., at 11-5.203 See Badcock, supra , note 152 at 5 (The Ontario Native Council on Justice).204“Ontario Native Police in Five Years Predicted” The Globe and Mall (27 February 1992) at A7.205 Gibbins and Pont ing, supra , note 107 at 222.206 Simpson, “Broad, Bold and Breath-taking, But What Does It Mean? The Globe and Mall(25 March 1992).207 Ibid.39Apparently, Manitoba will implement many of the Inquiry proposals, butrejects a totally autonomous system, partially, it says, because “the federalgovernment has made it clear that a separate justice system is just not Ofl.”208SaskatchewanLess than 48 hours after Manitoba rejected the idea of a separateAboriginal justice system, the Saskatchewan government was reported as,“expressing unequivocal support for the concept “209 by endorsing the Report ofthe Saskatchewan Indian Justice Review Committee, dated January 30,1992.210 In fact, after referring to the Inquiry and to the Cawsey Report, thisreport is explicit that, “The process undertaken in Saskatchewan cannot becompared to the inquiries and studies just referred to.”211This is because itsmandate was, “to focus on practical changes and initiatives that could beimplemented almost immediately, or within a very short period of time.”212Rather than examining a broad range of justice alternatives, the report chose, “.to examine ways to make changes within our present criminal justicesystem.”213 Accordingly, its proposals are consistent with the Cawsey Report214and the Edmonton Conference215 proposals in emphasizing indigenization,sensitization and an expanded role for native justices of the peace over First208 David Roberts, “Separate Native Justice System Rejected for Manitoba” The Globe and Mail(29 January 1992) at Al.209 David Roberts, “Saskatchewan Moves Toward Native Justice” The Globe and Mall (1 February1992) at A4.210 Report of the Saskatchewan Indian Justice Review Committee (Regina, SaskatchewanQueen’s Printer, January 1992) [hereinafter, Saskatchewan Report].211 Ibid.,at4.212 Ibid. ,at 1.213 Ibid. ,at4214 Supra, note 148.215 Supra, note 145.40Nations laws effected pursuant to the Indian Act, with a right of appeal to theProvincial Court216British ColumbiaBritish Columbia recognizes the mediation and conciliation emphasis inAboriginal approaches to justice, but its 1990 Report sees, “, . . much scope forthis approach within the present justice system.”217 The five goals of its actionplan are firmly rooted to the relatively mild and familiar versions of changeinvolving understanding, communication, service delivery, indigenization,diversion and the like, but all, apparently, within the existing system and theCharter.218CONCLUSIONFormer Chief Justice Dickson addressed a conference on Aboriginalissues in March of 1992 and is reported to have stated that: “To avoid a chaoticsituation any constitutional agreement on self-government must include broadparameters specifying that the Charter of Rights, the Criminal Code and certainother federal and provincial laws will continue to apply.”219 It is submitted thatthis statement of the former Chief Justice highlights the relative remoteness ofthe Inquiry position from much contemporary thinking and, in this sense, mayjustify Schwartz’s anticipatory description of it as a “radical proposal.”220 Theimportant question is whether this proposal, however radical, can adequately216 Saskatchewan Report, supra, note 210 at 45.217 Native Justice Consultations: Progress Report and Action Plan. (Ministries of SolicitorGeneral, Attorney General and Native Affairs (Vancouver, July, 1990) at 4.218 Ibid. , at 12-17.219 John Bryden, “Muironey Calls for Definition of Native Self-Government” The Vancouver Sun(18 March 1992) at 13 ; and see: Peter O’neil, TMConference Fails To Shed Light on Future of SelfGovernment” The Vancouver Sun (16 March 1992) at A9 where the former Chief Justice isquoted slightly differently, ‘Chaos would reign in Canada unless there are parameters around anaboriginal right to self-government. For starters the Charter of Rights must apply to all Canadians.”220 Schwartz, supra, note 17.meet the demands of contemporary Aboriginal crime, an analysis of which,begins in the next chapter.4142CHAPTER 2BASIC CONCEPTS AND ABORIGINAL CRIMEINTRODUCTIONPart two of this chapter examines the nature of Aboriginal crime,spawned, in part, by the colonization process, which autonomous Aboriginaljustice must be able to address. In assessing the sufficiency of the position ofthe Report of the Aboriginal Justice Inquiry of Manitoba,’ this thesis makesrepeated use of a number of concepts that are introduced in part onePART 1: BASIC CONCEPTSHARMONY EThOSIntroductionThe Inquiry considers the conventional justice system alien to Aboriginalvalues. The call for a fundamentally different Aboriginal justice system is notsimply a reaction to the governmental inertia of the past referred to in chapterone. It is premised on what the Inquiry describes as a very different Aboriginalworld view and concept of justice. This approach is set out here with a minimumof comment.Aboriginal Concept of Justice1 Report of the Aborigihal Justice lnquiiy of Manitoba: The Justice System and Aboriginal People(Winnipeg , Queen’s Printer, August 12, 1991) (Commissioners: Associate Chief Judge A.CHamilton and Associate Chief Judge C.M.Sinclair [hereinafter, lnquiy I43“The underlying philosophy in Aboriginal societies in dealing with crimewas the resolution of disputes, the healing of wounds and the restoration ofsocial harmony. . . . Atonement and restoration of harmony were the goals notpunishment,”2The philosophy in Aboriginal society was for allparties to acknowledge the crime, allow for someprocess of atonement and install a system ofreparation or compensation in order to restoreharmony to the community.3Aboriginal World ViewThe Aboriginal is said by the Inquiry to have a fundamentally different“world view,”4 which is manifested in certain “traits”5 “characteristics”6or“cultural imperatives,”7which grew out of the need “to maintain harmony andensure survival of the group.”8These communitarian values contribute to “majorAboriginal ethics or rules of behaviour [which] form the basis of daily relationswithin Aboriginal communities,”9and which, while perhaps now not necessaryto actual survival continue”. . . to be functional to maintain harmony within thecomm unity.”1°2 Inquiiy , supra , note 1 at 27.Ibid. , 26.Ibid. , at 35.5Ibid. ,at29.6 Ibid.Ibid. , at30.8Ibid. ,at3l.Ibid. at 33.10 Ibid. , at 32.44These altruistic traits include the “ethic of non-interference,”11 whichdiscourages “coercion of any kind;”12 the “rule of non-competitiveness [which]exists to suppress internal conflict within a group. . . [and] stresses a morecooperative approach,”13 and, “sharing [which] is another rule of behaviour.“14 natural to a communitarian based society:In some instances, it was institutionalized inceremonies to ensure that no one became too rich orpowerful and, conversely, that no one became toopoor or too powerless. Such ceremonies includedthe Potlatch of the West Coast and the Sundance ofManitoba. However, it was, and remains, a dailyfeature of Aboriginal societies in a less formalfashion [and] . . . serves as a form of conflictsuppression by reducing the likelihood of greed,envy, arroganc and pride within the tribe.”15Conventional System AlienWithin such a “value system” the processes of the Canadian justicesystem are found to be profoundly “alien”: “. . . adversarialism and confrontationare antagonistic to the high value placed on harmony and the peacefulcoexistence of all living beings, both human and non-human, with one anotherand with nature.”’6In the conventional system, “Retribution is demanded if the person isconsidered guilty [and is]. . . an end in itself. . . [which is] a meaningless notion11 Ibid.,at3l.12 Ibid.13Ibid. ,at32.14 Ibid.15 Ibid. ,at 32-33.16 Ibid. ,at 37.45in a value system which requires reconciliation of an offender with thecommunity and restitution for victims.Nl7Because the purpose of law in Aboriginal society is to restore harmonywithin the community. . . restitution to the victim or victims is, therefore, a primaryconsideration.N18 1n the eyes of the community sentencing the offender toincarceration or, worse still, placing him or her on probation, is tantamount torelieving the offender completely of any responsibility for a just restitution of thewrong. It is viewed by Aboriginal people as as a total vindication of thewrongdoer and an abdication of duty by the justice system.w19The Inquiry notes the relative U• ease with which a member of thedominant society can plead not guilty to a charge for which that person, in fact,is responsible. . . [as the] conventional response to an accusation, based on thedoctrine that people are not required to incriminate themselves and that it is upto the prosecution to prove guilt.N20 Whereas, uprimary Native values”21 are suchthat, . . to deny a true allegation is seen as dishonest, and such a denial is arepudiation of fundamental and highly valued standards of behaviour.TM22The Inquiry is critical of the adversarial system, which is described as aprocess, Nwhere only a chosen number are called to testify on subjects carefullychosen by adversarial counsel, where certain topics or information areinadmissible, and where questions can be asked in ways that dictate theanswers.TM23 It suggests that, • . . more of the truth can be determined wheneveryone is free to contribute information. . . [as in the Aboriginal hearingprocess where] belief in the inherent decency and wisdom of each individual17 Ibid.18 Ibid. at 36.19 Ibid. , at 37.20 Ibid. ,at 21-22.21 Ibid. , at 21Ibid. at 2223 Ibid. at 36.46person implies that any person will have useful opinions. . . [and thereforeallows] any interested party to volunteer an opinion or make a comment.”24TheInquiry states that, ‘Truth’ is a key concept in the Canadian legal system and,as such, is considered definite and definable,’25 whereas, the Aboriginalunderstanding is that, ‘‘absolute truth’ is unknowable. . . [and] relative.”26This Aboriginal world view and concept of justice will be referred to in thisthesis as the ‘harmony ethos.’27 This concept refers compendiously to what theInquiry concludes is a fundamentally different “meaning of justice.”28The Inquirystates that, NAt the most basic level of understanding, justice is understooddifferently by Aboriginal people. The dominant society . . .emphasis is on thepunishment of the deviant as a means. . . of protecting society.”29 However:The purpose of justice in an Aboriginal society is torestore the peace and equilibrium within thecommunity, and to reconcile the accused with his orher own conscience and with the individual or familywho has been wronged. This is a primary difference.It is a difference that significantly challenges theappropriateness of the present legal and justicesystem for Aboriginal people in the resolution ofconflict, the reconciliation and the maintenance ofcommunity harmony and good order.3°ACTUALLY EXISTING INDIANISM24 Ibid.25Ibid. ,at4l.26 Ibid.27 Ken Peak “Criminal Justice, Law, and Policy in Indian Country: A Historical Perspective’ (1989)17 Journal of Criminal Justice 393.28 InqUiry, supra, note 1 at 2229 Ibid.30 Inquiry, supra note 1 at 22.47This thesis will analyze the sufficiency of the Inquiry position against thereality” of the contemporary Aboriginal community and its justice needs anddemands. In so doing, two concepts are adapted from Salman Rushdie whichare intended to refer to the contemporary Aboriginal society and thecontemporary Aboriginal person - Nactually existing IndianismH and the secularI ndianw:I reminded myself that I had always argued that itwas necessary to develop the nascent concept of the‘secular Muslim’, who, like the secular Jew, affirmedhis membership of the culture while being separatefrom the theology.I also found myself up against the granite, heartlesscertainties of ‘Actually Existing Islam’, by which Imean the political and priestly power structure thatpresently dominates.. . Muslim societies. 31ADJUDICATION HIATUSIntroductionA central problem which this thesis raises about the harmony ethos is notthat it is wrong, but that it is an insufficient description of actually existingIndianism. It leads to a failure to adequately consider the adjudication, asdistinct from the mediation needs of the Aboriginal community. This thesisargues that this distinction is important in assessing the Inquiry position and therelevance of the Charter to an otherwise autonomous Aboriginal criminal justicesystem.Mediation31 Salman Rushdie, “1 ,000 Days Trapped in a Metaphor” The Globe and Mail (13 December1991) A19.48A Saskatchewan study32 examined the role of ‘peacemakers’ andconcluded that: ‘. . . any form of adversarial approach to conflict resolution was,in general, considered alien by the Indian bands. On the other hand, aconciliation and mediation approach, being more familiar, would be thepreferred manner of resolving disputes.’33 It defines mediation as involving aconsensual context:Mediation is defined as an approach to conflictresolution in which an impartial third party intervenesin a dispute, with the consent of the parties, to assistthem in reaching a mutually satisfactory settlement.Great value is placed on restoring relationships andreducing tensions and hostilities.34It underlines the need for consent even in areas other than criminaljustice such as ‘interpersonal disputes as might arise among families,neighbours, or landlords and tenants. . . [where] voluntary agreement toparticipation by both complainant and respondent is, of course, an essential.TM35It is submitted that this precondition is not just an empty legalism. Thesuccess of such an approach hinges on reconcilability. Mediators talk in termsof ‘compromise” helping parties ‘build bridges to each other,’ “trade-offs andchoices to be made,’ and ‘consensus.’36Mediation is seen as accentuating thepositive and blending separate interests to further an ongoing relationship ofsome kind, which could be as different as a child in common or theenvironment, but some ultimate objective which is “mutually agreeable”3732 Reflecting Indian Concerns and Values In the Justice System (Joint Study: Government ofCanada, Government of Saskatchewan and the Federation of Saskatchewan Indians, 1985)[hereinafter Saskatchewan Study]Ibid. ,at 33.Ibid. , at 29.Ibid. , at 31.36 John Sanderson, “Mediation: A Better Way Than Battling” The Vancouver Sun (28 January1992) at All.Re Residential Tenancies Act, 1979, [1 981 ]l S.C. R. 714 at 727.49however disparate the immediate appearances. In the context of criminaljustice, it is submitted that the offender must in some important way see his orher self-interest as connected to the ongoing relationship in dispute and to thecommunity interest in social harmony. NAtonement and restoration of harmonymust be predicated on a some sense of responsibility and will to atone andrestore.AdjudicationThe adjudication process, on the other hand, 9s predicated on theassumption that there are irreconcilable differences between the disputingparties.TM38 The context and purpose of adjudication is fundamentally differentfrom mediation. The alleged offender disputes the allegation or implacablyresists the suggested resolution of the dispute. There may be no mutuality ofinterest at all. Individual interest may have wholly displaced communitarianconcerns.38 Law Reform Commission of Canada, Studies on Diversion (Ottawa, Information Canada, 1975)at 27.50ConclusionThe line between mediation and adjudication will often be blurred. Thepotential reconcilability of the dispute may have to be sought out and evenfostered. However, it is submitted that a defiant assertion of innocence isfundamentally incompatible with the mediation process and demands anadjudication process of some kind. Such an assertion of innocence, ifmaintained, places the individual in an adversarial context. The individual isnow very much at risk of an imposed, rather than a negotiated or mediatedmutual settlement. It is this context to which Justice Dickson refers in stating that,adjudication deals primarily with the rights of the parties to the dispute,rather than considerations of the collective good of the community as awhole.39The Inquiry does not refer to the distinction between adjudication andmediation, perhaps because of its unremitting, seamless reliance on theharmony ethos. The Inquiry does not address the question posed by Hoebel inhis study of traditional Aboriginal law ways: NAnd what if guilt was denied?N40The failure of the Inquiry to consider the adjudication component of justice willbe referred to as the Nadjudication hiatus.”Re Residential Tenancies Act, 1979, supra, note 37 at743.40 E. Adamson Hoebel , “Law Ways of the Comanche Indians” in Paul Bohannon, ed. , Law andWarfare (New York, National Histoiy Press, 1967) 184 at 192.51PART 2: CRIME IN THE ABORIGINAL COMMUNITYI NTRODUC]1QNThe colonization process generated the self-government initiative, butalso created a crime problem which autonomous Aboriginal justice must besufficient to address. This part examines the nature of Aboriginal crime in orderto structure a background against which to assess the sufficiency of the Inquiryresponse. This background reality is merely one aspect of actually existingIndianism, which contributes to a conclusion that the very real contemporarydifferences between the Aboriginal and conventional society, identified by theInquiry, are not such that an Aboriginal justice system can function successfully,without an adversarial, adjudicative, rights-based component.This analysis of the nature of Aboriginal crime will be general and notwholly applicable to every community. However, just as all communities shareto varying degrees the common experiences of dispossession, marginalizationand loss of control, which inform the autonomy movement, so too, few can bewholly free of the devastating and often criminal manifestations of the process.The Ntragic ironyTM41 of the colonization process is that the people most affectedby the march of progress have been the least to benefit from it: “They have notreceived the electricity produced by the dams, the fuel from the oil wells and thepipelines, or the jobs created.”42 Instead, they have lost a productive and self-identifying way of life and are enmeshed in the tragedy of despair, alcohol andtheir criminal correlates.The association of alcohol and crime is, of course, a cross-culturalphenomenon, but its particular relevance to Aboriginal criminality was noted bythe Law Reform Commission in 1974, uMuch if not most, Native crime is41 Bradford Morse and bavid Nahwegahbow, The Interaction Between Environmental LawEnforcement and Aboriginal and Treaty Rights in Canada, (paper prepared for the Law ReformCommission of Canada,1 985) at 317 [unpublished].42 Ibid.52associated with the use of alcohol.N43 A paper prepared for the 1985 FirstMinisters Conference reported the incidence of alcoholism among Aboriginalpeoples to be 13 times that for non-Aboriginals.44 The result is that anAboriginal person is almost twice as likely as a white person to be a victim ofcrime generally, and runs an almost four times greater risk of being the victim ofviolent crime.45The purpose of self-government is, of course, to reverse the process andits effects. This it will likely do, but crime and the need for a complete andintegrated justice response, it is submitted, will never be eliminated in anycommunity, Aboriginal or non-Aboriginal. Indeed, Gibbins and Ponting arguethat the achievement of self-government , while on balance profoundly positive,may itself significantly contribute to instability and conflict. They raise thelikelihood of unrealistically high expectations for self-government on the part ofthe Aboriginal community, which in the case of some particularly disadvantagedgroups Nmay be near millennial.”46 If certain very real problems of actuallyexisting lndianism such as poverty and alcoholism simply prove to be inherentlydifficult to manage, then reactions of, “anger or conversely, cynicism and apathycan undermine the social vitality of the community.”47Such sentiments mayalso suggest fault lines in the harmony ethos which are examined more fully inchapter four.Douglas Schmeiser, The Native Offender and the Law, (Law Reform Commission of Canada,Ottawa, 1974) at 81.First Ministers Conference: The Rights of Aboriginal Peoples, Background Kit.(Ottawa, April 2-3,1985) at 4.Inquiry, supra , note 1 at 87. The general rate is described as 1.8 times and the violent rate as3.67 times the national rate.46 fl Gibbins and J. Ponting, “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada”, in Alan Cairns and Cynthia Williams, Research Coordinators, The Politicsof Gender, Ethnicity and Language In Canada (University of Toronto Press, Toronto,1984) 171at 186.‘ Ibid. ,at 189.53The disproportionate dimensions of Aboriginal crime48 are the product ofthe colonization process. They are not attributable to an inherent disposition toeither crime or alcohol, although the myth of genetic intolerance to alcoholapparently warranted scientific refutation as recently as the mid 1 970s.49 Evenwhen the plains Indians were facing starvation in the late 1870’s, with the lossof the buffalo and white encroachment, Mounted Police crime statistics showed,‘unequivocally that the Indian population had a much lower crime rate than didthe white. . . and. . ., with a much larger population than the whites, had fewertotal convictions than did the whites for liquor offences alone.’50Before white contact, ‘. . . the northern peoples of North America neithermade nor used intoxicants of any kind.’51 This curse was introduced by the furtraders who soon recognized, ‘an almost ideal trade commodity in alcohol: it issoon consumed and tends to be addictive.’52 Washington Irving is reputed tohave commented on the criminalizing effects of contact as follows: NThe Indiansimproved daily and wonderfully by their intercourse with whites. They took todrinking rum, they learned to cheat, to lie, to swear, to gamble, to quarrel, to cuteach other’s throatL in short to excel in all that marked the superiority of theirChristian visitors.’53It is submitted that the well-documented relationship between alcoholand crime, in fact, produces two related, but somewhat distinct effects, which willbe simplistically characterized for convenience as ‘minor”and “major”crime.48 The Inquiry, supra, note 1, at p. 88, concedes there is “a higher rate of crime among Aboriginalpeople.”Geoffrey York, The Dispossessed: Life and Death in Native Canada (U.K., Lester and Orpen,1989) at 188.50 John Jennings, “Policemen and Poachers: Indian Relations On the Ranching Frontier” , in A.W. Rasporich and Henry Klassen ,eds, Frontier Calgary:Town , City and Region 1875-1914(Calga,y, McClelland and Stewart, 1975) at 91.51 H. Brody, Maps and Dreams (Vancouver, Douglas and Mcintyre, 1988) at 250.52 Ibid.Peak, supra, note 27 at 394.54Minor crimeThe writer’s personal experience of prosecuting for over 20 yearssuggests there is a type of non-Aboriginal alcoholic offender, who is repeatedlyinvolved in a disproportionately high number of relatively minor nuisance,property, or disorderly offences. While the employed, family-monitored or,otherwise apparently responsible, occasional, such offender, might simply paya fine; the recidivist , alcoholic offender, without apparent economic or familysupport, would, with depressing regularity, end up in jail. This “revolving door”process would seem to have had no discernible positive impact on either theàffender or the community. However, often it seemed that the court waspresented with no viable alternative.It appears that this type of offender and these types of offences aregenerated in disproportionate numbers from within the Aboriginal community, ifincarceration for non-payment of fines can be taken as an indicator of therelatively minor nature of the presenting offence. Schmeiser reported in 1974that, “A large number of Native offenders are sent to jail for non-payment offines.”54 In spite of the possibility of Fine Option Programs55 and judicialwarnings against fining the impecunious, with summary incarceration in defaultof payment, 56 this pattern apparently continues.57 Hagan noted the Nativeperson’s, “repetitious involvement in minor offences.”58 Coyle’s study of Ontariopatterns noted that natives, “were over-represented in admissions involving asentence of less than three months”;59 were, “most frequently incarcerated as aSchmeiser, supra , note 43 at 81.55 Section. 718.1 of the Criminal Code of Canada permits such a program.56 R. v. Natrall (1972) 9 C.C.C.(2d) 390 (B.C.C.A.); R. v. Deeb and Wilson (1986) 28 C.C.C. (3d)257 (Ont.Prov. Ct.).lnquiiy, supra , note 1 at 419 - 421.58 J, Hagan, “Criminal Justice and Native People : A Study of Incarceration in a CanadianProvince”, Canadian Review of Sociology and Anthropology, ( August, 1974) 220 at 233;referred to in Simon Verdun-Jones and Gregory Muirhead, “Natives in the Canadian JusticeSystem: An Overview”, (1 979-80) 7 Crime and Justice 3 at 14.5 Michael Coyle, “Traditional Indian Justice in Ontario: A Role for the Present?”, (1986) 24Osgoode Hall L. J.605 at 607.55result of liquor-related offences,N6Oand a, TMdistressingly highTM61 and, TMalarmingnumber of these people are imprisoned because they fail to pay a fine.TM62One may question whether the full procedural panoply of theconventional criminal justice system is required in such proceedings. Moreover,as Verdun-Jones points out in referring to Brody’s description of the alcoholicTMrounder:63 9n such circumstances discussions of the rehabilitative ordeterrent effects of incarceration is otiose.TM64 Nevertheless, such mattersconstitute a significant and distasteful proportion of Aboriginal contact with thejustice system, which is at the root of much of the impetus for fundamentalchange. Indeed, the National Indian Brotherhood concentrated on this area inits submission to the Edmonton Conference65 in 1975, which urged that, 9ndiancourts be set up on the reserves to deal with minor criminal offences.TM66 Itexpressly based its position on the then recent Law Reform Commission ofCanada Report 67 showing, that native offenders are usually involved in lessserious crimes than non-Native offenders.68Such matters may be especially amenable to an alternative approachemphasizing restoration to, and, perhaps more importantly, utilizing theparticular strengths of, the Aboriginal community. These cultural strengths canbe harnessed to a restorative model in Aboriginal hands in ways simply, andIbid. ,at607.61 Ibid.62Jbid. ,at608.63 H. Brody, Indians on Skid Row (Ottawa, Information Canada, 1971) at 57; referred to in VerdunJones, supra , note 58 at 16.64VerdunJones supra, note 58 at 16.65 National Conference and the Federal - Provincial Conference on Native Peoples and theCriminal Justice System: Native peoples and Justice, (Ottawa, Ministry of the Solicitor General.1 975)(hereinafter, Edmonton Conference)66 National Indian Brotherhood, Indians and the Criminal Justice System (A brief presented to theEdmonton Conference, February 3-5. 1975) at 1 (under title “ Criminal Court System”).67 Schmeiser, supra , note 43.68 National Indian Brotherhood, supra , note 66 at 2.56regrettably, not generally available to the similarly cursed non-Aboriginaloffender. Alkalai Lake,69 formerly “Alcohol Lake”, exemplifies the transformationthat can occur when community pressure and support, coupled with native-controlled treatment centers and cultural traditions, such as the sweat lodge,sweetgrass ceremonies, fasting, traditional Indian dancing, the medicine manand all manner of self-identifying and empowering techniques, areconcentrated on motivated offenders. Alkalai Lake endured the nightmare ofalcoholism and violence and now is a symbol of hope for other communities.The key was full community involvement and commitment, “Culture istreatment; all healing is spiritual, the community is a treatment center; we are allcounsellors.” 70 Qf course, not all crime is minor, and not all minor offendersshare a commitment to the harmony ethos. Additionally, and importantly, somemay wish to assert innocence for whatever reason.69 See York, supra, note 49, chapter 7, “Alkalai Lake: Resisting AlcohoiN.70 Ibid. ,at 183.57Major CrimeAboriginal abuse of alcohol and resultant criminality is widespread, but itis also distinguished by a spree, or binge pattern of drinking. White alcoholics,of course, also often drink until the cash runs out, however, Aboriginal spreedrinking assumes communal or cultural proportions, penetrating the entirefabric of the community.’7’According to Brody’s analysis in Indians on SkidRow , Aboriginal drinking cannot be explained adequately by conventionalwhite perceptions of alcoholism: ‘Once heavy drinking is established as normalwithin a community or even within a whole culture, and that drinking isassociated with great pleasure, happiness and communality, the question ‘whydrink?’ is in danger of becoming a complete mystification. A more realisticapproach to the problem might come with a reverse question: ‘why not drink?’“72The effects of this kind of spree drinking within the close and oftenemotionally charged familial confines of the reserve may be overwhelming, andare the proximate cause of much relatively serious Aboriginal criminality: ‘theychange in every aspect of their behaviour. . . the changes are far more drasticthan those in white drinkers, [and]. . . the chaos of uninhibited spree drinking, isboth dismaying and terrifying.’73 Berger reported that, ‘when a traditionalcommunity becomes a drinking community, the whole atmosphere can change.Drunks can be seen staggering around the village and people begin to locktheir doors.74In her penetrating and disturbing book, A Poison Stronger than Love,Anastasia Shkilnyk documents the truly awful reality of alcohol, the poison ofsupra , note 49 at 196.72 Brody, supra ,note 63 at 73.Ibid., at 110.Northern Frontier, Northern Homeland-The Report of the Mackenzie Valley Pipeline Inquiry,Vol.1 (Ottawa, 1 977)( Mr Justice Tom Berger, Commissioner) at 155.58the title, in Grassy Narrows, and its relationship to the incidence of crime withinthat community of about five hundred.75 Grassy narrows is, of course, auniquely devastated community, having to cope with the additional burden ofmercury poisoning, however Shkilnyk notes that spree drinking distinguishesIndian drinking patterns from the white society, ‘not only in the Kenora areareserves, but in Indian communities across the country.’76 York cites studiesestimating disproportionately high abuse of alcohol among New Brunswick,Saskatchewan and Manitoba Aboriginals, and states that, ‘In other regions thepattern is similar.’77Shkilnyk describes the spree as, ‘a continuous process; people drinkuntil they become unconscious.’78She states that, ‘A prolonged binge is like atornado that tears across the landscape of the community, leaving devastationin its wake. During the binge, infants become dehydrated, children go hungry,women are swollen from beatings, young girls are raped.’79Common sense would anticipate serious incidents from such volatileconditions and this is confirmed by Shkilnyk’s closer observation of the scene.During one five day binge following a payday in 1979, Shkilnyk diarized: a 4year old wandering alone at midnight; an 18 month old abandoned in an emptyhouse; a nine month old with obvious bruising locked in a room; an 8 month oldfound abandoned in the bush; an infant barely saved from falling off a dock anda 12 year old beaten and gang raped.8°She concludes that violence by adultsand breaking and entering by the young are associated with, ‘these blackperiods of heavy drinking,’8’and that incest is common: “. . . the drinking partyA. Shkilnyk, A Poison Stronger than Love: The Destruction of an Objibwa Community , (YaleUniversity, 1985).76 Ibiá , at 20.‘‘ York, supra, note 49 at 192.78 Shkilnyk, supra , note 75 at 21.Ibid.80 Ibid. ,at 41-42.81 Ibid. ,at3O.59during the binge is almost always composed of family members belonging tothe same bloodline. During such a binge, the taboos against incest or sexualrelations between close relatives are dissolved.”82 She reports that femalesuicide is noticeably higher, “. . . the connection between gang rape andattempted suicide by young women is no secret in the community “83 York citessimilar incidents at Alkali Lake before the successful sobriety movement: “Manyof the women were beaten up and it was common to see them with black eyesor puffed up faces following the weekend. Some were even hospitalized. Girlswere raped and even gang-rape was usual.”84 The Canadian Committee onViolence Against Women is currently investigating the comprehensive problem,but confirms a particular concern for violence against women in the Aboriginalcommunity as suggested by the above anecdotal descriptions.85Gasoline and Other Substance AbuseExtensive gasoline and other substance abuse aggravates a difficultsituation, especially among the young. The terrifying effects of this mostdangerous of addictions is specifically and graphically documented by York forthe Cree reserve of Shamattawa in Manitoba, but he notes that its significantcontribution to crime generally, and extreme violence in particular, is a seriousproblem, Nat scores of native communities across the country.”86 A 1986 studyconcluded that 70 per cent of all lndian,children in northern Manitoba sniffedgasoline and 1400 of these are described as in,userious trouble,” requiring82 Ibid. at 46.Ibid.84 York, supra , note 49 at 178.85“Violence Against Women”, The Vancouver Sun (23 March 1992) at A9. Its informationmaterial suggests that eighty per cent of native women on reserves in Ontario have been abusedor assaulted.86 York, supra , note 49 at 9.60treatment.87 Police in northern Ontario estimate that gasoline sniffing is linked to60 to 70 per cent of crime by juveniles. 88The very steep road to recovery is highlighted by the effects of alcoholand gasoline on the very young next generation. Shkilnyck found that: of 22children in grade two in 1979, ‘ten were sniffing heavily and showing signs ofmental deterioration;’ ‘over half the children in grade three were sniffing;’ six of20 children in grade four were, ‘in an advanced state of intellectual andemotional derangement due to mixing gas with alcohol,’ and, an increasingnumber of infants will show signs of fetal alcohol syndrome at birth.89Commercial CrimeThe contemporary Aboriginal community is not free of modern or whitecollar crime and this type of crime may even increase with self-government andthe associated opportunities for graft to which politicians and administrators ofall stripes seem prone. Howard Adams, a prominent and aggressive90 leader inthe native rights movement, bitterly refers to community development funds,‘being ripped off by the native administrators before they get to thecommunity,’9’and, ‘unaccountable [multi-million dollar grants]. . . opened up tomanipulation and corruption,’92 by what he dismisses as, “opportunists, drifters,hucksters. . . freeloaders, in other words.’9387 Ibid. , at 10.88 Ibid. , at 11.89 Shkilnyk, supra , note 75 at 45 and 47.90 See chapter one: notes 133-135.9lHowa.rJ Adams, Prison of Grass: Canada from a Native Point of View (Saskatoon, Fifth House,1989 ).at 179.92 Ibid. , at 160.Ibid. ,at 161.61TraffickingThe Aboriginal community is not free of the drug trafficking problem. TheWarrior Society, asserting its exclusive right to protect the reserve, is reportedas forcibly evicting a Kahnawake Aboriginal woman who had been repeatedlywarned by the Society to desist from selling drugs on the reserve.94GamblingGambling is attractive to Aboriginal and, increasingly, provincialgovernments, as a source of revenue. Casinos on the reserves are seen as, Nanimperfect and partial solution to a large and complicated economic problem -the revival of the Indian comm unities across Canada.TM95Bingo is big business already and members of bands near Parry Soundand Brantford are reported as facing charges amidst internal controversy as tothe appropriateness of the activity and the applicability of Canadian law.96In the United States, gambling started innocently enough with bingo, butis said to have escalated to an annual billion dollar business,97 which, even ifseen as positive affirmative action, cannot be expected to totally avoid anelement of criminal penetration and associated degradation invariablyassociated with big money operations. The gunfire, arson and violence at theSt. Regis-Akwesasne reserve involves Ncaino wars dividing Mohawk againstMohawk.98 Recently, the 300 members of the Alderville reserve near CoburgOntario voted against a 200 million dollar Las Vegas style casino, splitting the94A. Fleras, Race and Minority Relations (Waterloo, University of Waterloo, 1991) at 192.95Terrence Corcoran, “Indian Casinos: One Way to Renewal”, The Globe and Mall (21 May 1992)at B2.96 Ibid. , at 193.97William Sfire, ‘Legal Gambling a Greater Threat Than Any Racial Slur” The Vancouver Sun, (8January 1992) at A13.98 Fleras, supra, note 94 at 206; and see: A. Picard, “A One Way View From the Barricades”, TheGlobe and Mail (3 August 1991)atCl4.62community between those who lamented a lost economic opportunity and thosewho feared, “whorehouses, dope racketeers and God knows what else.’99A 1991 RCMP report describes cigarette smuggling as an annual 500million dollar business, “linked to the sensitive native issue,’ and to organizedcrime, gambling and weapons, which is principally associated with theAkwesasne reserve, but, ‘has increased to the point that it is truly national inscope.”°°CONCLUSIONThis part emphasizes the nature of Aboriginal crime because the Inquiry,it is submitted, tends to minimize the seriousness of it. The Inquiry describesthirty five per cent of reserve crime as falling into a group of four relatively minoroffences common assault, break and enter, theft under and public mischief,10’and states that, ‘. . . although there were more violent offences than non-Aboriginal people committed, the majority of crimes committed were pettyoffences.”°2It may be that the Aboriginal community generates a higher proportion of‘petty offences.” However, it is submitted that the above description ofAboriginal crime does not reveal a crime problem within the Aboriginalcommunity that is so different in nature from that of the larger society to suggestthat adjudication processes will not be required of an autonomous Aboriginaljustice system. It is submitted that an unknowable portion of “major” crime aswell as a portion of ‘minor” crime is less amenable to pure restorative justice.Paul Waldie, “Reserve Turns Down Plan for Las Vegas-Style Casino’, The Globe and Mail (11November 1991) at A5.100 Alan Freeman, “Cigarette Smuggling ‘Escalating “The Globe and Mail, (19 November 1991)at Al.101 Inquiry, supra, note 1 at 87.102 Ibid. , at 88.63This portion will generate “the potential for true penal consequences,”103 apotential which chapter three argues tends to reduce the utility of mediation andreconciliation and increase the need for an adjudication process. This justifiesconcerns about the adjudication hiatus apparent in the Inquiry response.The colonization process has hobbled three crucial sources of thesocialization process whereby control over ones behaviour is learned andrefined: the family, the school and the workplace.104 Such crippled societies canbe expected to generate a disproportionate number of offenders, as confirmedby the observation of the Australian Law Reform Commission noted in chapterone, “The primary reasons for this disproportionate representation lie outsidethe criminal justice system.”105 It would be a “grave delusion”106 to exaggeratethe extent to which any justice system can contribute to the reversal of thesecriminogenic processes, and it is not suggested that the expectations of theInquiry for an Aboriginal justice system are anything more than appropriately“modest “107 in this regard. However, It may be equally delusional, and,ultimately contrary to the best interests of the Aboriginal community, either tominimize the seriousness of Aboriginal criminality, or to exaggerate the capacityof the harmony based paradigm of justice envisaged by the Inquiry, to respondthereto.The nature of Aboriginal crime alone does not appear to justify a totallydifferent approach to justice. Chapter three examines the theoretical rationalesfor both individual and group rights and the suggested conceptual justificationfor a communitarian based system which would place group rights beforeindividual rights.103 R. v. Genereux [1992] S. C.J. No. lOat2O104 Jean-Paul Brodeur, Carol La Prairie and Roger McDonnell,.Justice for the Cree: Final Report(Quebec, Cree Regional Authority, 1991) at 44.[hereinafter Cree Report]105 The Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws,Report No. 3! (Canberra: Australian Government Publishing Services, 1986) referred to in,Michael Jackson, “Locking Up Natives in Canad&’ (1989) 23: 2 U.B.C. L. Rev.215 at 217.106 The Cree Report, supra, note 104 at 44.107 Ibid. , at 43.64CHAPTER 3COLLECTIVE AND INDIVIDUAL RIGHTS: SECTION 25INTRODUCTION VThe Charter puts the rights of the individual ahead of the group.in our culture, the rights of the group must come ahead of theindividual.1The doctrine of political and social individualism in the westemerged from and as a counter to the doctrine of the preeminence of the group (whether Church, guild, rank, or other). InRousseau’s words: ‘Man is born free, and everywhere he is inchains’. The chains to which Rousseau refers are those of thegroup, the social unit which superimposes itself on the individual.2Section 35 of the Constitution Act “recognized and affirmed,” but did notdefine, a special status for the Aboriginal peoples of Canada. Constitutionallymandated conferences4failed to reach agreement on the nature of this specialstatus, partly because of an inability to resolve the different emphasis onindividual and collective rights represented by the above positions.5The current“Quebecnative balancing actu is described as two peoples, “. . . competing forwhat seems to be a limited supply of group rights in the national-unity debate.”61 D. Shoalts, “Natives Value Justice Differently” Globe and Mall (9 September 1991) at Al,quoting Pearl Keenan, elder, Teslin TlingIit band.2 Francis Svensson, “Liberal Democracy and Group Rights: The Legacy of Individualism and ItsImpact on American Indian Tribes”, 27 Pol. Stud. 423.3 The Constitution Act, 1982, being Schedule B of the CanadaAct 1982 (U.K.), 1982, c. 1.Ibid. , s. 37.Will Kymlicka, Liberallsm, Community and Culture (Oxford, Clarendon Press, 1991)138.6 Susan Delacourt, “A Tale of Two Nations” The Globe and Mail (26 May 1992) at Al.65The concept of ‘collective rights’ has been referred to as a ‘novelty,’7andas such, it is both confusing and controversial. It is not clear whethercommunities have or should have rights, or if so, the nature of such rights, It isbeyond the scope of this thesis to resolve the philosophical and legal debateabout these apparently unusual and perhaps awkward commun.itarian values.Nevertheless, the idea of a collective interest, whether properly termed a‘collective right or not, is very much at the heart of the Aboriginal drive forinherent self-government and a special place within Canada as described inchapter one. It is reasonable to assume that a conceptual justification for aseparate Aboriginal justice system, as a component of self-government, mustdraw on whatever the rationale is said to be for a ‘collective right.This chapter delineates conceptual and practical elements of this debatewhich will be used in subsequent chapters to examine several issues which thisthesis has set out to address in the context of actually existing Indianism. Towhat extent does the Aboriginal desire for a separate justice system conform tothe theoretical parameters of a collective right? What is the relationshipbetween such a collective right and the rights of the larger external communityof which the Aboriginal community is a part? What is the internal relationshipbetween such a collective right and the rights of the individual members of thatcollective? What is the position of an individual who considers himself or herselfa member of both the external and the internal community? What role, if any,might the Charter 8 play with respect to either the external or the internalrelationship?TERMINOLOGY CONFUSIONThe confusion engendered by the term “collective rights” stems largelyfrom an intuitive sense that ,however real the value of a seemingly nebulousgroup, that value can have no foundation other than the interest of the tangible,7 Michael Hartney, “Some Confusions Concerning Collective Rights” (1991) 4 Can. J. Law & Jurs.293.8 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter ].66individual member of the group. The individual is the justification for the goodhowever Ncollectivew the good may appear to be. Thus, goods whichconventionally can be participated in only with others, such as a cultural activity,or goods which depend on membership in a group, such as Aboriginalentitlement to band funds, may be referred to as collectiv& goods, but they aregood only uto the extent that they contribute to the well-being of individualhuman beings.9 Indeed the collective” right to a minority language educationmay be said to hinge on the pragmatic economic rationale of sufficient numbersof individual members of the collective to warrant the expense.1°The holder ofthe right is an individual who is limited to asserting the right from within anappropriately sized group.Hartney suggests11 that it is in this sense that Justice Tarnopoisky refersto TMgroup collective rightsw to minority education in Reference re an Act toAmend the Education Act12 and Justice Wilson refers to “a group right” to openon Sunday in Edwards Books and Art Limited v. the Queen 13It is reasonable to confine these usages of the term “collective rights” to anotion of individual rights reserved to members of certain groups. Such ausage, while potentially confusing, is not legally problematic. However, the useof the term with respect to Aboriginal rights seems intended to refer to a valuewhich is not reducible to a set of individual interests and, significantly, whichmay transcend the individual interest. Sanders would refer to the aboveexamples as “group rights. . . the sum of the rights of the individual members ofthe group,” to distinguish them from, “collective rights . . . that transcend theending of discrimination against their members.”14Hartney, supra , .note 7 at 298.10 See generally Michael Bastarache, “Education Rights of Provincial Official LanguageMinorities” in, Gerald-A Beaudoin and Ed Ratushny, eds, The Canadian Charter of Rights andFreedoms, 2nd. ed. , (Toronto , Carswell, 1989) 687 at 696 - 702.11 Hartney,supia note7at3ll-312.12 (1986) 53 O.R. (2nd) 513.13 [1986] 2 S. C. R. 71 3 at 808-809.14 Douglas Sanders, “Collective Rights” (1991) 13 Human Rights Quarterly 368.67SKEPTICISM ABOUT GROUP RIGHTSThis latter sense of a collective right does raise problems. It posits a rightinhering in the collective entity itself, which is distinct from, and thereforepotentially in conflict with, the individual rights of the member. This runs counterto the conventional, intuitive belief in the paramountcy of the individual, andwould be, to that extent, a novelty. Justice McIntyre quotes with approvalanother commentator’s instinctive aversion to this sense of a collective right asfollows:This notion that an association is no more than the sum of itsindividual members seems essential in a society in which it is ‘theindividual who is the ultimate concern of the social order’. In sucha society it would hardly seem possible that an abstract entity sichas an association should enjoy rights apart from and indeedgreater than its individual members.15Chief Justice Lamer seems to express a similar skepticism in a recentinterview: N•. a person is a very important thing. Everything else is subordinate.Even collectivities.N16There can be no question that the Charter was based fundamentally on arespect for individual rights, which its principal political architect, PierreTrudeau, thought to be universal, constant and based on unatural law”:In ancient times, and for centuries thereafter, these rights wereknown as ‘natural rights’; rights to which all men were entitledbecause they are endowed with a moral and rational nature. Thedenial of such rights was regarded as an affront to ‘natural’ law -those elementary principles of justice which apply to all human.beings by virtue of their common possession of the capacity toreason. . . Cicero said of natural law that it was ‘unchanging andeverlasting’, that it was ‘one eternal and unchangeable law.valid for all nations and for all times’.’715 Reference re Public Service Employees Relations Act (Alta ) [1987] 1 S. C. R. 313 at 398.16”How the Charter Changes Justice,” The Globe and Mail (17 April 1992) at Al 7.17HoourabIe Pierre Elliott Trudeau, A Canadian Charter of Human Rights (Ottawa, 1968) 9.68Ely notes, however, that ‘natural law’ can be invoked, ‘to supportanything you want.’18 Its allure is not lost on advocates of Aboriginal collectiverights whose assertion of Aboriginal title and the right to self-government isbased, ‘on a covenant with the Creator from time immemorial’19:The most precious aboriginal right of the first Nations is the right toself-government.., a collective human right. . . . The Creator gaveeach people the right to govern its own affairs, as well as land onwhich to live and with which to sustain their lives. These Creator-given rights cannot be taken away by other human beings.2°While Aboriginal peoples in Canada are now accorded individual rightsdue any human being,21 their natural entitlement thereto has been the subjectof dispute. During the years 1550 and 1551, the legal and moral justification forthe Spanish subjugation of the Aboriginals of the new world was debated byJuan Sepulveda and Bartolome de Casas before a council summoned byEmperor Charles V of Spain.22 The core of this debate was whetherAboriginals possessed, ‘the moral and rational nature,’ and the very, ‘capacityto reason’ referred to by Trudeau,23 considered essential to the natural basis ofrights. Las Casas, a former conquistador with Columbus, turned Franciscanpriest, argued on the basis of the earlier writings of Francisco De Vitoria that18 John Ely, Democracy and Distrust: A Theo,y of Judicial Review (Cambridge, Harvard UniversityPress, 1980) at 50.19 Menno Boldt and J. Anthony Long (in association with Leroy Little Bear),eds, The Quest forJustice: Aboriginal Peoples and Aboriginal Rights (Toronto, University of Toronto Press, 1984)Introduction.20 Ibid. at 24.21 Douglas Sanders, “The Renewal of Indian Special Status” in, Bayefsky and Eberts , (eds)Equality Rights and The Canadian Charter of Rights and Freedoms, 529 At page 552, Sandersstates that, “ Invidious discrimination no longer exists in federal or provincial statutes.”22 Appellants’ Factum, Delgamuukw v. A. G. of B. C. et at (1987), paras 808 to 81 9.(hereinafterFactum), reproduced in Michael Jackson, Native Peoples and the Law, (Vancouver, University ofBritish Columbia, 1992).Trialjudgement reported: [1991] 3 W.W.R. 97.23]’rudeau supra, note 17.69these original inhabitants were, ‘free and rational persons,’24 ‘truly men,’25 and‘not ignorant, inhuman or bestial’26 Probably Sepulveda will be rememberedas, ‘one of the world’s first great racists’27 for countering with an argumentbased on the inherent inferiority of a people, ‘. . . in such a state of barbarismthat force was required to liberate them from this condition.’28A considerable vestige of this skepticism about Aboriginal individualrights is directed in modern times to the issue of Aboriginal collective rights.British Columbia Chief Justice Davey attracted censure from the highest judiciallevel for referring anachronistically to the Nishga capacity to govern: ‘[they]were undoubtedly at the time of settlement, a very primitive people with few ofthe institutions of civilized society.’29 The ‘White Paper’ of the Trudeaugovernment referred derisively to the implausibility of such a collective concept,‘These are so general and undefined that it is not realistic to think of them asspecific claims capable of a remedy.’3°This skepticism is repeated by some philosophical writers, one of whomobserves, for example, that, ‘all individuals whomsoever. . . have rights [but] notall groups. . . have rights [and are] not naturalli endowed with rights.’3124 Factum, supra , note 22 , pare. 809.25 Ib ,para. 815.26 Ibid. , paw. 818.27 Howard Adams Prison of Grass: Canada from a Native Point of View (Saskatoon, Fifth House,1989) at 12.28 Factum, supra , note 22, paw. 817.29 Reg. v Calder 13 L -. R.(3d) 64 at 66 (B. C. C. A.) referred to in the Factum, supra , note 22,para. 820. Hall J. criticizes this comment in Reg. v Calder[19731 34 D. L. R. (3d) 145 at 170 (S. C.C. ): “In so saying this in 1970, he [Davey C.J.] was assessing the Indian culture of 1858 by thesame standards that the Europeans applied to the Indians of North America two or more centuriesbefore.’30 Dept. of Indian Affairs and Northern Development, Statement of the Government of Canada onIndian Policy, 1969.31 Jan Narvesson, “Collective Rights?”, (1991) 4 Can. J. Law & Jurs.329 at 330.70The seemingly pre-eminent status of individual rights is suggested by theSupreme Court of Canada’s assertion that the function of the Charter, H . is toprovide for the unremitting protection of individual rights and liberties,”32 andthat, “. . . emphasis on individual conscience and individual judgement. . . liesat the heart of our democratic tradition.”33RECOGNITION OF GROUP VALUESDespite, or perhaps because of, this traditional resistance to collectiverights, the Canada clause in the recent federal proposals appears deliberatelyattuned to communitarian values in constitutionally acknowledging:the importance of tolerance for individuals, groups andcommunities and respect for the rights of citizens constituentcommunities as set forth in the Canadian Charter of Rights andFreedoms .3 (emphasis added)This more inclusive approach is not without judicial support. Chief JusticeDickson, in a seminal case on Charter interpretation, expressed the view thatrespect for both the individual and the group are underlying values whichgenerate the rights and freedoms of the CharterA second contextual element of interpretation of s.1 is provided bythe words “free and democratic society.” Inclusion of these wordsas the final standard Of justification for limits on rights andfreedoms refers the court to the very purpose for which the Charterwas originally entrenched in the Constitution: Canadian society isto be free.and democratic. The court must be guided by the valuesand principles essential to a free and democratic society which Ibelieve embody, to name but a few, respect fOr the inherent dignityof the human person. commitment to social justice and equality,accommodation of a wide variety of beliefs, respect for culturaland group identity, and faith in social and political institutionswhich enhance the participation of individuals and groups insociety. The underlying values and principles of a free anddemocratic society are the genesis of the rights and freedoms32 Hunter v. Southam Inc. [1984] 2 S. C. R. 145 at 155.A. v. Big M. Drug Mart Ltd. [1985] 1 S. C. R. 295 at 346.34“Shaping Canadas Future Together” The Globe and Mall (25 September 1991) at A6.71guaranteed by the Charter and the ultimate standard againstwhich a limit oh a right or freedom must be shown, despite itseffect, to be reasonable and demonstrably justified.35 (emphasisadded)Turpel minimizes Justice Dickson’s comments as representative of a‘paradigm of rhetorical arguments’36 which permit insensitivity to culturaldifference. Magnet cites Quebec Chief Justice Deschênes’ rejection of Bill 101as indicative of the judiciary’s continuing resistance to the theory and practice ofcollective rights:Quebec’s argument puts forward a totalitarian view of society towhich the Court does not subscribe. Human beings are to us, ofparamount importance and nothing should be allowed to diminishthe respect due to them. Other societies place the collectivityabove the individual. They use the Kolkhoze steamroller and seemerit only in the collective result even if individuals must bedestroyed in the process.37 (emphasis added)Justice Deschêne’s suggestion that ‘nothing’ can interfere with individualrights echoes Dworkin’s famous claim to the effect that individual rights trumpcollective interests.38 However, section 25 of the Charter would seem to suggestthat this may not always be so:The guarantee in this Charter of certain rights and freedoms shallnot be construed so as to abrogate or derogate from anyaboriginal, treaty or other rights or freedoms that pertain to theaboriginal peoples of Canada....Does this section refer to the ‘novel’ sense of ‘collective rights’?Probably so. The Supreme Court of Canada’s first exploration of the scope ofAeg. v Oakes (1986) 24 C. C. C. (3d) 321 (S.C. C. )at 346.36 Mary Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, CulturalDifferences” (1989-1990)6 C. H. R. Y. B. 1 at 26.3’ Joseph Manget, ‘Collective Rights, CultUral Autonomy and the Canadian State”, (1986) 32McGiIIL,J. 171 at 181.38 R. Dworkin, Taking Rights Seriously (London, Duckworth, 1977) at 188; referred to byHartney, supra note 7 at 303: “Individual rights are political trumps held by individuals.”72Aboriginal rights entrenched in section 35 of the Constitution Act, 1982, refersto such rights as, TMrights held by a collective and are in keeping with the cultureand existence of that group.4° Justice Mclntrye, in characterizing the right tostrike as an individual right in an earlier case, makes passing reference toAboriginal rights in section 25 as something distinct from individual rights:While some provisions in the Constitution involve groups, such ass. 93 of the Constitution Act, 1867 protecting denominationalschools, and s. 25 of the Charter referring to existing aboriginalrights, the remaining rights and freedoms are individual rights;they are not concerned with the group as distinct from itsmembers.41POSSIBILITY OF TYRANNY OF THE GROUPDoes section 25 imply that Aboriginal self-government, or its justicecomponent, could steamroller individual rights in the name of collectivesecurity? This possibility was referred to by Whyte as one of a catalogue of legalproblems concerning Aboriginal self-government:It is felt that by virtue of the operation of Section 25 found in theCharter of Rights and Freedoms , it is possible that the basichuman rights and freedoms articulated in the Charter of Rights willnot be available to citizens under aboriginal self-government.4239Supra ,note3.40 Reg. v. Sparrow (1990) 56 C. C. C. (3d) 263 at 290.(refernng to the right to fish).41 Reference re Public Service Employees Relations Act (A/ta.), supra , note 15 at 397.42 John Whyte, “The Aboriginal Self-Government Amendment: Analysis of Some legalObstacles” in, David Hawkes and Evelyn Peters, Aboriginal Peoples - and Constitutional Reform:Workshop Report - Issues in Entrenching Aboriginal Self- Government (Institute ofIntergovernmental Relations, Kingstons, 1987) 77 at 81.73On another occasion, Whyte refers to this individual - collective potentialconflict as, deeply troublesome” and, . . . a problem that represents the singlebiggest conceptual block to Indian political autonomy.”43Others are more blunt:The communitarian impulse to jettison justice must be tempered inorder to retain some notion of rights, collective or otherwise.44Contemporary Example of the PossibilityThe reality of such a disturbing clash between individual and collectiverights is dramatically illustrated by the 1991 case of David Thomas v.DanieINorris et. al.45 The plaintiff’s wife, wishing to improve the marital relationship,arranged, without her husband’s permission or knowledge, for the defendantsto initiate her husband into the Coast Salish Big House tradition known as theCoast Salish Spirit Dance. The defendant did not consent to participate in theceremony, nor is such consent required according to the tradition, so long as amember of the family of the initiate, quite commonly the wife, does so. Theplaintiff was grabbed” or taken from his home and confined in the Long Housefor four days, where he was subjected to the ritual four times each morning andfour times each afternoon: NHe was lifted up horizontally by eight men, who thentook turns digging their fingers into his stomach area and biting him on hissides,”46”. . . hard enough to hurt and hard enough to make him scream.”47 Mr.Justice Hood found that the plaintiff was assaulted and imprisoned, “all forcibly‘ John Whyte, Indian Self-Government: A Legal Analysis” in, Leroy Little Bear, Menno Boldtand J. Anthony Long, Pathways to Self-Determination: Canadian Indians and the Canadian State,(Toronto, University of Toronto Press, 1984) 101 at 103.‘‘ Darlene Johnston, “Native Rights as Collective Rights: A Question of Group Self-Preservation”(1989)2 Can. J. of Law and Jurs.19 at 21.45 (16 September 1991), Victoria 88/412 (B. C. S. C.)Ibid. , at 6.47lbid. ,at7.)74and without his consent or acquiescence,”48and that, “when he arrived at thehospital he was dehydrated, his peptic ulcer was activated, he was sufferingfrom multiple contusions and he was frightened that ‘he would be dragged backthere ‘“49The Spirit Dance, which is an ancient and sacred tradition intended tobenefit the initiate and his family, is further described as follows:The initiation process is commenced by the initiate being‘grabbed’ by his or her initiators, and taken to a Long House andthere detained for a number of days, presumably the time it takesto complete the initiation. It is completed when the initiate has hisor her vision experience, which is evidenced by the initiatedancing and singing his or her song. While in the Long House, theinitiate undergoes a process which includes being liftedhorizontally to shoulder or head height, by eight or so initiatorswho, among other things, blow on the body of the initiate to helpthe initiate ‘bring out’ or sing his or her song. This ritual is repeateddaily, four times each morning and four times each afternoon. Theinitiation is done under the guidance of elders who are in chargeof the process, which takes a number of days. During the processthe initiate participates in rituals including a ceremonial bath,dressing in clean clothes, fasting and sleeping in a blanket tent setup in the House. The initiate is always accompanied by anattendant who is called his or her ‘baby-sitter’.5°It was the stated intention of the defendants to “baby11 the plaintiff and to,not do anything that might hurt him.”51 However, at least one of thedefendants was aware that such initiations are not always benign and, in fact,resulted in a death in 1988.52 An inquest into that death revealed that sevendeaths had occurred on Vancouver island as a result of this rite since 1972.“s Ibid. , at 27.Ibid. at 28.50 Ibid. , at 34.51 Ibid. , atl3 and 15.52 Ibid. , at 13.53“D•ing Around the Law of the Land” The Globe and Mail (11 February 1992) Al 6.75The respective positions in the case are somewhat confusing. Counselfor the plaintiff argued,54 on the basis of the Dolphin Delivery case,55 thatsection 25 of the Charter had no application in the absence of any stateinvolvement. The defence56 and the Court57 agreed. The Court decided therewas insufficient proof of the existence of Spirit Dancing as an Aboriginal right,58and even if it did so exist at one time, the non-consensual part did not survivethe introduction of English law in the mid-1800s.59 However, the Court wasprepared to assume for the sake of argument that Spirit Dancing was anAboriginal right which survived the introduction of English law and existed in1982.60 Thus the issue was framed in terms of section 35 and the justificatorystandard for extinguishment established by Reg. v Sparrow.61 The Court statedthat, •the only question remaining is whether the upholding of the individual’scommon law rights, over the constitutionally protected collective rights of theBand, can be justified.N62 Or, as the defence put the issue:Are the individual rights of aboriginal persons subject to thecollective rights of the aboriginal nation to which he belongs?63The Court had no difficulty concluding that the protection of individualrights is a valid common law objective, and the collective right, to the extent thatforce is an integral part, is extinguished for what the court refers to as Hobvious5’ Thomas, Ibid. , note 45 at 29.Peterson andAlexanderv. Dolphin Deliveiy Ltd. [1987] 1 W.W.R. 577 (S. C. C.).56 Thomas, supra,, note 45 at 42.Ibid. , at 29.58 Ibid. , at 36 and 39.Ibid. , at 39.60 Ibid., at 41.61 Supra., note 40.62Thomas, supra, note 45 at 46.Ibid.76reasons.64 It restricts the collective right to, . . . the residue of the rightremaining after the civil rights of the persons who may be injured by its exerciseare recognized.”65 It is submitted that this comes very close to saying simply thatindividual rights automatically trump conflicting collective rights.SECTION 25: FOCUS OF THE ISSUEUnfortunately then, this case provides no guidance on the dynamics ofthe individual-collective clash contemplated by section 25. However, it issubmitted that Aboriginal rights cannot have much meaning or uniqueness ifthey are routinely restricted or extinguished to conform to the values of thedominant society. Indeed, as Morton observes, such rights often will be assertedfor the very reason that they are non-conforming practices:such non-Europeon, and thus non-liberal, traditions and valueswould inevitably, and in some cases purposely, be included in theinternal policies of self-governing Indian bands. Indeed, a centralpurpose of the native claim to self-government, free from ‘outside’interference, is precisely to protect and to promote aspects oftraditional native culture that are perceived to Ie threatened by thenorms and practices of Canadian society.66The Thomas case was a private civil matter. However, it is assumed forthe purposes of this thesis that a similar assertion of collective paramountcy inan Aboriginal criminal justice system, pursant to the inherent right to self-government, would trigger section 25. Many aspects of the communitarianismliberalism clash, inherent in the Aboriginal justice issue, will converge aroundsection 25, which has yet to receive any significant judicial application.67 The641b1d , at 49.65 Ibid. , at 50.66 F. L. Morton ‘Group Rights Versus Individual Rights in the Charter: The Special Cases ofNatives and the QuebecoisTM in, Minorities and the Canadian State , Neil Nevitte and AlanKornberg, eds, (Oakville, Mosaic Press, 1985) at 75.67 Attorney- General for Ontano v. Bear Island Foundation et a!. (1984) 15 D.L.R. (4th) 321(H.C.J. ) affirmed 58 D.L.R. (4th) 117, R. v. Steinhauer(1985) 15 C.R.R. 175 (Q. B.) and R. v.Nicholas [1989] 2 C.N.L.R. 131 (Q. B.) simply affirm that the section acts merely as a shield anddoes not create additional rights.77balance of this chapter is divided into two parts which focus firstly on therationales for collective and individual rights and secondly on the interfacebetween the two as contemplated by section 25.To be more specific, part one examines basic theoretical parameters ofindividualism and communitarianism in the context of the contrastingconventional and Aboriginal views of criminal justice identified by the Report ofthe Aboriginal Justice Inquiry of Manitoba 68, as set out in chapter two. Certaintheoretical problems associated with communitarianism, their possiblerelevance to the Aboriginal justice system envisaged by the Inquiry and thepotential significance of Charter values to such problems are identified. Thefuller significance of these theoretical matters is addressed in chapter four in thecontext of actually existing IndianismPart two assumes the inevitable clash between collective and individualrights teasingly raised in Thomas ,69 and examines how section 25 might beused to resolve this issue in a principled way, in light of the apparent rationalesfor these respective rights. A rationale is fashioned for the finding of a legallyenforceable collective right, which is rather greater in scope than merely theNresiduew untouched by conflicting individual rights. Chapter five will argue thatthis rationalization for collective paramountcy is not restricted to a section 25analysis, but is relevant to any exercise of a local option with respect to theCharter, either as a result of the Inquiry recommendation, or implementation of asection 33 override power.PART 1: RIGHTSINDIVIDUAL RIGHTS68 Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and AboriginalPeople (Winnipeg , Queen’s Printer, August 12, 1991) (Commissioners: Associate Chief JudgeA.C Hamilton and Associate Chief Judge C.M.Sinclair [hereinafter, Inquiry]69 Supra, note 45.78It is inevitable that governments, native or otherwise, will pass criminallaws. The liberal justification for such laws is generally based on a respect forindividual liberty.70 Everyone is entitled to pursue one’s own definition of thegood to the extent that one does not infringe on the equal right of one’sneighbour to do the same. The role of the state in a liberal democracy is toensure that the individual’s choice of the good is free from interference fromothers or from the state. It is not the role of the state or collective to impose itsconception of the good The individual is seen as an end rather than a means toa collective good. Dworkin explains, what a liberal would consider, the misuseof the individual as a means to a collective good as follows:A majority decides to make criminal some act. . . not because theact deprives others of opportunities they want, but because themajority disapproves of . . . [the act] . . . The political decision, inother words, reflects not just some accommodation of the personalpreferences of everyone, in such a way as to make theopportunities of all as nearly equal as may be, but the dominationof one set of external preferences, that is, preferences peoplehave about what others shall do or have.71Individual rights are seen as a shield against, and thus in opposition to,such a collective definition of the good. Fundamental individual rights orfreedoms are seen as encompassing areas presumptively likely to attract strongcommunitarian or external preferences, and any intrusion into these otherwisesacrosanct private spheres must be demonstrably justified.72A similar concern for the individual informs the justification for “dueprocessN rights, or what the conventional system would call “the principles offundamental justice.”73 While such rights may not absolutely shield theindividual accused from state action, they do ensure that, Hcriminal procedure.[is]. . . structured to achieve a margin of safety in decisions, so that the process70 See generally, Ronald Dworkin, A Matter of Principle (Cambridge, Harvard UniversityPress,1985) c.8: Liberalism”.71 lbid,at 19672 Ibid. ,at 197.73 The Charter, supra, note 8, section 7.79is biased strongly against the conviction of the innocent.”74 Dworkin points outthat such procedural rights, 9ntervene in the process even at the cost ofinaccuracy,” but, in effect, to the benefit of fairness and protection of theindividual accused against the state.75 Chapter five of this thesis emphasizesthat this protection of accused persons redounds to the benefit of all members ofthe state.The Canadian criminal justice system is firmly grounded in the soil ofliberalism. The most relevant rights in the context of the issue of an alternativecriminal justice system are the “legal rights” set out in sections 8 to 14 of theCharter, referred to in section 7 as “the principles of fundamental justice.” Theconventional system considers these rights, “the most important of all thoseenumerated in the Charter,”76 and they have been given a broad and respectfulinterpretation since, “the rights involved are as fundamental as those whichpertain to the life, liberty and security of the person, the deprivation of which‘has the most severe consequences upon an individual’.”77 The SupremeCourt of Canada has recently confirmed this concern for the individual accusedin holding that an alternative military justice system will be subject to the legalrights provisions of the Charter, “. . . if the imposition of true penalconsequences is involved.”78 Where such a risk to the individual is involved,sections 8 to 14 of the Charter function as, “specific instances of the basic tenetsof fairness upon which our legal system is based, and which are nowentrenched as a constitutional minimum standard by section 7•”79 Chief JusticeLamer refers to his previous judgement in Reference re B. C. Motor VehicleAct,8° which more expressly founds such tenets of fairness four-square on aDworkin, supra, note 70 at 197.Ibid. at 198.76 Re Cadeddu and the Queen (1982) 40 0. R. (2d) 128 at 139.Reference re B. C. Motor Vehicle Act (1985) 24 D. L. R. (4th) 536 (S. C. C.) at 548 quoting ReCadeddu, ibid.78 R. v. Genereux [1992] S. C. J. No. 10 at 20.Ibid. , at 44.80 Supra, note 77.80foundation of conventional liberal concern for the individual:’. . . they representprinciples which have been recognized by the common law, the internationalconventions and by the very fact of entrenchment in the Charter, as essentialelements of a system for the administration of justice which is founded upon abelief in the dignity and worth of the human person and the rule of law.’81 Thesesentiments echo the words of Pierre Trudeau that legal rights,’. . . go to the veryroot of the concept of the individual so prized in Canada.’82This concern for the individual accused is premised on the potential of‘true penal consequences,’83 or punishment, in which case, ‘The State’sinterest in punishment must always be weighed against the rights and freedomsof the individual.’84 It is these rights which are threatened by the exclusion of theCharter from an Aboriginal criminal justice system, or by the principle of theparamountcy of collective rights in that system.Aboriginal Justice: Mediation v. AdjudicationHowever, as outlined in chapter two, the harmony ethos of the Inquiryposits a fundamentally different foundation and purpose for an Aboriginaljustice system which emphasizes that, ‘Atonement and restoration of harmonywere the goals - not punishment.’85Therefore, the examination of actually existing Indianism in chapter fourwill include an assessment of the extent to which punishment and true penalconsequences, and thus an increased concern for the individual offender, maybe indicated. The analysis of the nature of Aboriginal crime in chapter two, has81 Ibid. ,at 557.82 Supra , note 17 at 19.83 Genereux supra, note 78.84 Don Stuart, “Four Springboards from the Supreme Court of Canada: Hunter, Therens, MotorVehicle Reference and Oakes- Asserting Basic Values of our Criminal Justice System” 12Queen’s L. J. 131 at 132.85 Inquity, supra , note 68 at 27.81suggested that the basic nature of Aboriginal crime itself is not so different fromthe conventional picture as to preclude consideration of resort to punitivejustice.These different rationales also suggest that concern for the individual,and hence the protection of Charter values, may be heightened in theadjudication context where the sense of responsibility and will to atoneessential to mediation can neither be assumed nor fostered, and is, in fact,denied and resisted. Therefore, chapter five will consider the extent to which theliberal emphasis on individual rights premised on an adjudication-punishmentcontext may bear modification in a mediation-reconciliation context. The Courtin Genereux suggests that, “. . . the contextual approach is a tenet ofconstitutional interpretation which is of paramount importance,”86such that, “.a particular right or freedom may have a different value depending on thecontext.”87 Charter rights which might otherwise seem alien to the Aboriginalvalue system, may seem less so in any criminal justice situation where theharmony ethos is actually operational.COMMUNITARIANISMPatrick Monahan argues that an interpretation of the Charter which seeksto make sense of the document as a whole must take into account, “that theCharter is not simply a reflection of liberal individualist values.”88 Seãtion 25(and ss. 27 and 29) can be seen as, “. . . designed to preserve or enhancecommunitarian values.”89 The official language and minority languageguarantees in sections 16 to 23, in linking the exercise of the right to the86 Supra , note 78 at 52.871b1d. ,at53.88 Patrick Monahan “The Use and Abuse of American Constitutional Theory in Charter Analysis”in, L. Smith, R. Elliot and R. Grant, eds, Canadian Charter of Rights and Freedoms, (Vancouver,University of British Columbia, 1992) (hereinafter Smith, Elliot and Grant) at 2-78.89 Ibid. at 78.82presence of a sufficient community, show, “a symbiotic relationship betweenindividual autonomy and community values.”90While this suggested endorsement of communitarian values by theCharter pales in comparison to the emphasis on individualist values outlinedabove, Monahan’s ‘relatively unambitious purpose is simply, “to identify thetypes of arguments and considerations that ought to count in interpreting theCharter which might assist the court in ‘balancing’ rights against largerconsiderations of social utility.”91 He argues that a purposive approach to theinterpretation of the Charter also ought to take into account the communitarianvalues which underlie it.The communitarian challenge to individualism questions, “the claim forthe priority of the right over the good,”92 and is, “dismayed by the exaltation ofthe individual, that grounds contemporary liberal theory.”93 The communitariantakes the view that individuated interests, as urgent as they may be, do notexhaust what is important in life: “Liberty is important, but so is a sense ofcommon enterprise . while individual well-being matters, so may the wellbeing of groups of people, especially when it seems distinct from the well-beingof their members taken severally.”94Communitarians reject the liberal idea of a state neutral to the good infavour of a classical, Aristotelian state, that actively promotes the good or “civicvirtue,” the essence of which is defined as, “the willingness of citizens tosubordinate their private interests to the general good.”9590 Ibid. at 77.91 Ibid. at 87,92 Michael Sandel,Liberalism and its Critics, in Smith, Elliot and Grant ,supi, note 88 at 1- 24.Donna Greschner, Feminist Concerns With the New Communitarians: We Don’t Need AnotherHero , in Smith , Elliot and Grant, supra , note 88 at 1 -26.Leslie Green, “Two Views of Collective Rights” (1991) 4 Can. J. Law & Jurs. 315 at 317.G reschner,supra , note 93 at 1- 26.83Aboriginal Person: Different World ViewThe harmony ethos is, of course, an expression of this communitarian“world view,”96 which is holistic in nature, • placing a high value on harmonyand the peaceful coexistence of all living things, both human and non-humanwith one another and with nature.”97 In the Aboriginal value system, “the ideathat guilt and innocence can be decided on the basis of argument isincompatible with a firmly rooted belief in honesty and integrity that does notpermit lying.”98 In traditional cultures the individual saw himself: “. . . as part of awhole that was much larger than himself. His life acquired meaning withreference to this whole and in its service.”99 This was strikingly reflected intraditional forms of Aboriginal justice where the offender’s clan might beexpected to offer up a life in satisfaction of a wrong and, “Loyalty to the familywas such a powerful force, that the person chosen to give up his life for hisclan’s honour went to his doom willingly and with grace.”10°Therefore, the efficacy of an Aboriginal justice system and the need forCharter protection will rest in part on the extent to which the Inquiry’s emphasison this Aboriginal communitarian world view conforms to contemporary reality.The examination of actually existing Indianism in chapter four will assess theextent to which the modern, perhaps secular, Indian is motivated to sublimateself to the interest of the community.The Tyranny Problem96 Inquir,’, supra, note 68 at 35.‘ Ibid. , at 37, and see, chapter two herein.98 Ibid.9 Joseph Pestieau, “Minority Rights: Caught Between Individual Rights and Peoples Rights”(1991) 4 Can. J. Law & Jurs. 361 at 369.100 Christie Jefferson, Conquest by Law: A Betrayal of Justice in Canada (Burnaby, NorthernJustice Society, Simon Fraser University, 1988) [unpublished] at 147.84A major concern liberals express about collective rights is the “KolkhozeSteamroller,”101 or the fear that,”. . . any attempt to govern by a vision of thegood is likely to lead to a slippery slope of totalitarian temptations.”102 Dworkinobserves that people who share a “sound conception of virtue,”103 rather thanseeking to exclude external preferences in governing, expect such preferencesto be legislated. Due process concerns for the individual which permit the guiltyto go free, tend to be replaced by an emphasis on accuracy and efficiency in theprocess in the belief that, “. . . the censure of vice is indispensable to the honourof virtue.”104While there is often something of a rhetorical flourish to this concern, itcannot be denied that history is replete with examples of “collective rights”becoming “collective wrongs.”105Therefore, an assessment of the efficacy of an Aboriginal justice systemand the need for Charter protection will need to be sensitive to the dynamics ofcontemporary Aboriginal society and the extent to which this danger of abuse inthe name of collective rights is real.Balkanization101 Manget,supra, note 37.102 Michael Sandel, supra , note 92, at 1- 25.103 Dworkin, supra , note 70 at 198.104b1d. , at 200.105 Morton, supra , note 66 at 80 sets out representative examples.85Another concern expressed about collective rights is the tendency toMbalkaniz&106 the liberal state thus making it at least difficult to carry out anypolitical agenda,107 if not actually to threaten the political stability of the state.108The theoretical possibility of 633’° separate and distinct justice systemswithin Canada is also a part of actually existing lndianism and raises alegitimate concern about uniformity.John A MacDonald saw uniformity as a reason for reserving the criminallaw power to the federal government:The criminal law too - the determination of what is a crime andwhat is not and how crime should be punished - is left to thecentral government. This is a matter almost of necessity. It is ofgreat importance that we should have the same criminal lawthroughout these provinces that what is a crime in one part ofBritish America, should be a crime in every part - that there shouldbe the same protection of life and property in one as in another.11°Pierre Trudeau considered uniformity of standards within a federal stateto be one rationale for a bill of rights: NOnly by a single constitutional enactmentwill the fundamental rights of all Canadians be guaranteed equal protection.”1The Canadian Human Rights Commission in recognizing the need forAboriginal justice autonomy, nevertheless saw a need for, Ha basic level ofconsistency with national norms.N112106 Michael McDonald, “Should Communities Have Rights? Reflections on Liberal Individualism(1991)4Can.J,ofLaw& Jurs.217at227.107 Ibid.108 Ibid. ,at 246.109 The Globe and Mall (11 January 1992) A6.There are 633 bands registered under the IndianAct encompassing over 2300 reserves.The Assembly of First Nations is comprised of the chiefsof these bands. This factor is analyzed more fully under “localness” in chapter five.110 Martin Friedland, A Centur’ of Criminal Justice (Toronto, Carswell, 1984) 48.Trudeau, supra , note 17 at 14.112 Canadian Human Rights Commission,”lssues in Human Rights” Newsletter (February., 1989),and see: note 190, chapter one.86The Canadian Bar Association, in- 1989, strongly endorsed Aboriginalself-determination, N• without impairing the fundamental rights guaranteed toall Canadians.’13This theme is continued in its most recent report in responseto the Federal Government’s proposals: N the resolution of these issues musttake place within the context of an affirmation of the shared values which createthe framework for accommodating Canada’s diversity. Since adoption of theCanadian Charter of Rights and Freedoms, Canadians have come more andmore to regard the constitution as belonging to them as citizens and enshriningtheir common values.114if the Inquiry is correct that a collective right to a justice system, resideswithin each and every properly constituted Aboriginal community,115 and thateach such community is, Nentitled to enact their own criminal laws and to havethose laws enforced by their own justice systems,N116 then, even though John Awould not have approved, a degree of inconvenience and administrativeawkwardness is simply a justifiable necessity.However, the Charter could play a significant role in accommodating thisneed for justice pluralism with a natural desire, if not need, for some degree ofuniformity. The Genereux case illustrates the possibility of minimum, butuniform standards unifying practically and symbolically at least two verydifferent systems.117 This possibility is examined more closely in chapter five.COMMUNrrY-CONSTITUTING UNDERSTANDINGThe Aboriginal approach to justice which emphasizes the individual’sobligations and allegiance to the community as distinct from his rights against113 Annual Meeting, Resolution AO3-89.114 Rebuilding A Canadian Consensus: An Analysis of the Federal Government’s Proposals for aRenewed Canada (Ottawa, December, 1991) at 3.115 Inquiry, supi,note 68 at 316.116 Ibid. ,at 323.117 Genereux, supra, note 78.87the community, is based on a traditional world view which may bearmodification in the contemporary context: The belief in the harmonious andconsensual nature of communities often ignores the reality of conflict anddissension so that local justice may serve to exacerbate rather than reduceconflict.”118 The possibility of fault lines in the harmony premise relates to theconcept of a “community-constituting understanding,”119 which advocates ofcollective rights assert is a, “necessary condition for the attribution of collectiverights.”120 This subjective shared understanding arises naturally as a social factrather than being created artificially as a legal fiction. It will arise mostcommonly as a response to a shared objective factor such as oppression whichprovides the focus of the shared understanding and may explain the variousvalues that arise from it.121 This group”internal cohesiveness”122 reaches thepoint where each member can be said to, “see herself as part of an us ratherthan a separate me. “123 At some profound level such allegiance to the groupcan be seen as part of the member’s self- identification.TheAboriginal CommunityThe requirement of a “community-constituting understanding”124 againindicates the relevance of an examination of actually existing Indianism toassess the extent to which the views of the secular Indian may be said to accordwith the notion of the paramountcy of the collective interest in the specificcontext of criminal justice. A commitment to the goal of self-government may notnecessarily translate into a commensurate collective sharing with respect to118 Jean-Paul Brodeur, Carol La Prairie and Roger McDonnell, Justice for the Cree: Final Report(Quebec, Cree Regional Authority, 1991) at 5 [hereinafter, Cree Report].119 McDonald, Supra, note 106 at 231.120 Ibid.121 Ibid.,at 219.122 Sanders, supra , note 14 at 369.123 McDonald , supra , note 106 at 219.124 Ibid at 231.88autonomous justice as a means to that goal. The individual Aboriginal maysimultaneously identify with both the traditional and the dominant society. Suchan examination will be sensitive to the possibility that the advocates of acollective right to autonomous justice may ‘claim to see a homogeneous nationwhere homogeneity exists only in their minds.’125 If a significant portion of thecontemporary community in fact asserts a concern for liberal values in thisparticular context, there may be ‘to all intents and purposes a secondcommunity.’126 The need for Charter protection of the individual Aboriginalwithin a self-governing community may relate in part to the degree to which themodern Aboriginal community truly contains a homogeneity of views: ‘The‘politics of culture’ presupposes a homogeneous community, while the Charteris designed to protect the equal treatment of individuals in a heterogeneoussociety.’127If the reality is homogeneous consensus, the concern for tyranny may bediminished. However, if examination reveals a significant diversity of valueallegiances then, ‘a prince, a city, or a state ‘128 may be tempted to use thekolkhose steamroller to pave over the fault lines in the communityunderstanding to impose its particular view of the good. If so, the relevance ofthe Charter may be enhanced.DiasporaAn aspect of actually existing lndianism which may be relevant to theassessment of a community-constituting understanding is the fact of what thisthesis will refer to compendiously as the ‘diaspora.’129 A significant portion,125 Ibid. ,at 367.126 Ibid. ,at231.127 Morton, supra , note 66 at 81.128 Pestieau, supra , note 99 at 366.129 R. Gibbins and J. Ponting, “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada’ in, Alan Cairns and Cynthia Williams, research coordinators, The Politicsof Gender, Ethnicity and Language in Canada (University of Toronto Press, Toronto, 1984) 175.89arguably a majority,130 of the Aboriginal community, lives off-reserve,maintaining a lifestyle largely indistinguishable from what might be consideredconventional. This sub-group, even if it wished to subscribe to the benefits of thecommunitarian justice ethjc, may not be able to do so fully, as it lacks theterritorial land base arguably essential to self-government:No form of self-government has been put forward without a landbase, which could be designated as such in any conventionalsense of that term . . . Self-government, in all its various forms,must have as a starting point some land base on which togovern.131This factor will also be related to the issue of uniformity discussed above.The Charter may serve to connect the Aboriginal system not just to the largerWhite society, but to its unlanded brethren.RATIONALE FOR COLLECTIVE RIGHT: CULTURAL SURVIVALIf a community-constituting understanding about some form of Aboriginaljustice is found to exist, after considering any fault lines in actually existinglndianism, it remains to consider the rationale for elevating this value to thestatus of a right which is intended to be legally enforceable against the contraryright of an individual. Johnston observes that, collective rights cannot beasserted in a vacuum.”132 Pentney stresses that the particular content of agroup right will derive from, N the nature, history and social context of thecollectivity.”133 Just as not all individual interests generate rights, so too, theremust be something special about a group interest in justice to transform thatvalue into a legal right. A related matter involves examining why this rightshould vest in the collectivity as distinct from the individual member.130 Ibid. ,at 175.131 David C. Hawke, Aboriginal Self-Government (Queen’s University, 1986) at 25.132 Supra, note 44 at 28.133 William Pentney, The Aboriginal Rights Provisions in the Constitution Act, 1982 (LL.M.Thesis, University of Ottawa, 1987) at 56.90This part of the analysis must be sensitive to the rhetorical power of therights discourse in order to avoid moving in a rather too, ‘. . . cursory way fromthe claim that communities are good things to the claim that communities haverights.’134It is apparent that ‘rights ground duties’135 and therefore should be foundto exist only where there is a sufficient rationale to raise a corresponding duty. Itis submitted that it would not be unreasonable to insist that this rationale besubstantial indeed, if ascribed to a ‘nebulous’136 collective with inherentpotential to interfere with real human beings through the imposition of ‘realpenal consequences.’137Such a sufficient, and perhaps the only defensible, rationale may be thecultural survival or identity or integrity of the group. The Constitution does seemto encompass the recognition of some notion of collective rights138 and, asPentney observes, such rights would appear to be, ‘meaningless unless thecollectivity itself is allowed to survive.”39 This would accord with the view that amajor difference between an individual and a collective right is that anindividual asserts a, ‘right to be treated like any other human being [whereas, acollective asserts a right] . . .to be treated differently.’140 Pestieau expressessuch a sentiment with respect to Aboriginal rights:A minority wants to exist as such. It will not settle for demanding forits members the same advantages as those enjoyed, by themajority. . . . The indigenous peoples of Canada . . . are not justclaiming for their members the same advantages as those enjoyed1 Hartney, supra , note 7 at 294.135 Green, supra , note 94 at 318.136 Pentney, supra , note 133 at 46.137 Genereux , supra , note 78.138See, ‘Recognition of Group Values”, supra.139 Pentney, supra , note 133 at 53.1 Hartney, supra , note 7 at 311.91by the majority of Canadian society. They do not want to beassimilated.’41Some collective interests seem to relate quite readily to this notion ofcultural survival. Language, for example, may encompass an, “entire pattern ofculture.”’42 What, however, is the relationship between cultural survival andjustice? Quebec seems able to assert a distinct society status without requiringa distinctive criminal justice system. On the other hand, the military, arguably,could not survive without a separate system of justice.’43 Therefore, as isdiscussed in more detail in part two, it will be relevant to examine the historicalroots of Aboriginal justice to ascertain the extent to which it is associated withAboriginal cultural distinctiveness.The cultural survival factor is asserted as a justification for a separateAboriginal justice system. The Inquiry adopts Ovide Mercredi’s assimilationfears as, . . the unarticulated premise underlying the concerns of otherAboriginal presenters “144 on Aboriginal justice:Unless we affirm our rights and rebuild our social and politicalinstitutions now, we are fearful that within decades, assimilationwill be complete and our civilization will disappear.145The colonization process described in chapter one confirms the grimreality of this assimilationist fear. Diamond Jeness, the federal governmentanthropologist, wrote that, “doubtless all the tribes will disappear,”146 and in1947, he seemingly set out to realize this prediction by presenting a plan, “to141 Supra , note 99 at 364.142 Nathan Brett, “Language Laws and Collective Rights” (1991) 4 Can. Law & Jurs.347 at 359.1 Genereux , supra, note 78. See note 161, infra.1 Inquity, supra , note 68 at 256.145 Ibid.146 Diamond Jeness, The Indians of Canada, 7th ed.(University of Toronto Press, 1947) 264.92abolish, gradually, but rapidly, the separate political and social status of theIndians.”147147Sanders, supra , note 21 at 535.93Precedent for Cultural Survival RationaleIt is difficult at this early stage in the development of a collective rightsjurisprudence to be definitive, however, a cultural survival rationale forcollective rights is consistent with somewhat analogous judgements of theSupreme Court of Canada.In Ford v Quebec,148 the Court held that the objective of ensuring thesurvival of the ‘Quebecois Francophone collectivity,’149 or ‘visagelinguistique,’15°or the ‘means by which a people may express its culturalidentity,’151 would have justified an appropriately tailored law overriding theindividual right to expression.152 The Court ruled admissible certain materialrelating to the vulnerability or survival of the French language in Quebec andCanada.’53In Caidwell v. Stuart,154 a Catholic denominational school dismissed anemployee for marrying a divorced man, contrary to the teachings of the Church.This case was decided before the Charter, however the Court, in justifying theCatholic Church’s power, which may arguably be seen as a collective right, toensure Catholic standards in a denominational school, emphasized that, ‘.148 [1988] 2 S. C. R. 712.149 Sanders, supra , note 14 at 378.150 Ford, supra , note 148 at 780.151 Ibid. , at 749.152 The law requiring French only commercial signs was struck down as a mere predominance ofFrench on commercial signs could have achieved the objective with less intrusion on individualrights.153 Ford ,Supra., note 148 at 777.The concern for the protection of the French language couldperhaps more appropriately be viewed as a concern for the” linguistic security “of the collectivityor at least the members of the collectivity, in order to counter the argument that the goal ofprotecting an endangered linguistic species cannot generate a case for rights. See Brett, supra,note 142 at 351.154 [1984] 2 S. C. R. 6O3.94the special nature and objectives of the school [make] observance of theChurch’s rules . . . reasonably necessary to assure the achievement of theobjects of the school.”155 Manget, commenting on this case, observes that, 1t isdifficult to see how a denominational school, the raison d’être of which isinculcating a set of religious tenets through example, can survive promotion offree thinking in key staff members.”156 Roger Tassé observes that the effect is toprotect, “the essential Catholic nature” of the school with the result that theCatholic Board might have the right to fire women who marry civilly, but couldnot refuse to hire women.157In Genereux,158 Chief Justice’ Lamer justifies a separate military justicesystem in cultural survival terms,”. . . the Charter was not intended to underminethe existence of self-disciplinary organizations such as, for example, theCanadian Armed Forces. “159 He asserts that a parallel system is, “deeplyentrenched in our history and supported by . . . compelling principles,”160 andadopts the comment of Cattenach J. in a previous case that, “Without a code ofservice discipline the armed forces could not discharge the function for whichthey were created.”16’The cultural survival rationale is detectable elsewhere. A draft UnitedNations Declaration on the Rights of Indigenous Peoples refers, in part, to their,“collective right to exist. . . as distinct peoples.”162 Macklem refers to Aboriginalrights as, “affirming a sphere of autonomy for native people over those matters155 Ibid. at 625.156 Joseph Manget, Multiculturalism and Collective Rights : Approaches to Section 27° in,Beaudoin and Ratushny, supra , note 10, 739 at 773.157 Roger Tassé, “Application of the Canadian Charter of Rights and Freedoms (Sections 30-33and 52)” in, Beadoin and Ratushny, supra, note 10, at 114, note 148.158 Supra,note 78.159 Ibid. , at 32.160 Ibid.161 IbkI.,at3l.162 Rudy Platiel, “Native Rights Debated at UN” The Globe and Mail (20 February 1992) A4.95that are central to their individual and collective self-definition,”63 Theagreement reported to be emerging from the ongoing constitutionalnegotiations states, . . . that self-government will be described as a system toguard and develop native languages, cultures, identities and traditions.”64The Group as Holder of the RightIf an autonomous Aboriginal justice system is found to relate in somesignificant way to the continuing cultural distinctiveness of the Aboriginal group,then it probably makes sense that the protection of such ‘paradigmaticallycollective assets”165 should somehow be vested in the group itself, for severalreasons.Certain unique aspects of the Aboriginal situation may make theirassertion of collective rights, as distinct from mere collective interests,particularly compelling. They have a genuine communitarian tradition on whichto build, which is most obvious in their relationship to land:The hunting territories and the fishing places belonged to theentire band, and were as much the right of every member as thesurrounding atmosphere.’66Immigrant groups, arguably, cannot assert an enforceable right toseparate institutions of cultural survival, as they presumably expect to have torely on the policy and good will of their chosen country.167 Aboriginal groups,however, as the prior occupiers of the land, may be able to justify a strident163 Patrick Macklem, First Nations Self-Government and the Borders of the Canadian LegalImagination [1991] 36 McGill L. J. 383 at 451.164 Susan Delacourt and Richard MacKie, “Compromise Makes Day at Unity Talks,” The Globe andMail (28 May 1992) at Al.165 McDonald, supra, note 106 at 235.166 Jeness, supra , note 146 at 124.167 Will Kymlicka ,“Liberalism and the Politicization of Ethnicity” (1991) 4 Can. J. Law & Jurs 239.96demand as set out in chapter one, that the uninvited dominant society respecttheir right to institutions of cultural survival.Most significantly, individual rights may be simply insufficient to realizethe purpose of the cultural survival of such a severely damaged society:For such societies, there is a kind of Humpty Dumpty effect; oncesuch a community is shattered it cannot be put together again. Topretend that individual rights without the addition of powerfulcollective rights and powers would preserve the social goods inquestion would I think be disingenuous.168One of the criteria for a collective right advanced by Joseph Raz is that,“the interests of no single member of that group in the public good is sufficient tojustify holding another person to be subject to the duty.”169 On this view,protecting the culture of a group is not reducible to merely protecting theindividuals who comprise it. The culture could survive while the individuals donot, and the the individuals could survive while the culture does not.17°Sanders makes a similar point with respect to the creation of a separateProvince of Quebec: “To simply recognize the right of individual Francophonesto speak French or follow the cultural norms of their traditions would havedefeated the collectivity. French would have lost out in the linguisticmarketplace of North America. “171Therefore it seems reasonable to conclude that, if a collective Aboriginalright is otherwise warranted, it is not simply redundant to the rights of theindividual members of the group, but is necessarily vested in the group entity toserve the distinctly different function of group survival.168 McDonald supra, note 106 at 230.169 J Raz, The Morality of Freedom (Oxford, Oxford University Press, 1986) 208, referred to byBrett, supra , note 142 at 353.170 Brett, supra , note 142 at 355.171 Sanders, supra , note 14 at 382.97The next part considers this rationale in the context of section 25 andaddresses the interface between collective and individual rights contemplatedby that section.PART 2: SECTION 25SECTION 25: CULTURAL SURVIVAL AND THE INDIAN ACTIt is submitted that the legislative and political background to section 25 isconsistent with a cultural survival rationale for a collective right. Section 25 wasthe legislative response to Aboriginal fears that their special status under theIndian Act was open to a section 15 equality challenge.172 Contrary to theexpectations of Jeness,’73 and no doubt others, the Aboriginal communitypersisted in the face of repeated threats to their cultural survival. Sanders notesthat, “The most significant development in post-war Canadian aboriginal policyis the acceptance of the idea that Indian communities should have continuingspecial status within Canadian federalism.”174 The “historic breakthrough”’75ofagreeing to entrench the inherent right to self-government builds on thisacceptance. However, the basic fact was that the Indian Act treated Indians, quaIndians, differently from other people,’76 and was vulnerable under section 15of the Charter. Previous threats to this special status as a distinctive culturalcommunity had aroused considerable opposition. In 1969 Pierre Trudeau, “tooka strong Social Darwinian approach”177 in rejecting a special status for Indians172 See generally Sanders, supra , note 21 where this point is thoroughly canvassed.Supra, note 146.174 Sanders, supra, note 21 at 529.175 Susan Delacourt, TMNatives Promised Self-governmentTM The Globe and Mail (10 April 1992) atAl, quoting Premier Rae.176 Isaac v. Davey, [1973] 30. R. 677 at 690.177 Sanders, supra , note 21 at 538.98in the previously noted and infamous ‘White Paper,”178 which proposed therepeal of both the Indian Act and s. 91(24) of the Constitution Act, 1867. It wasrepealed after “massive Indian opposition.’179In 1974, the LaveIl 180 case mounted an attack on the Indian Actmembership system, which clearly discriminated on the basis of sex, since anIndian woman lost her status if she married a non-status man, whereas, anIndian man conferred status on a non-status woman by marrying her.Aboriginals, as in the case of the White Paper, reacted “strongly’181 to this casesensing, ‘that all parts of the Indian Act were now vulnerable to judicialattack.’182 The apparent legitimacy of the position of Aboriginal women coupledwith the perceived general threat to the special status of the Indian Act resulted,N. in an atmosphere of controversy that has characterized very few argumentsbefore the Supreme Court of Canada.”183The Court was apparently loath to ‘simply junk’ 184 the Act and effectivelyavoided the merits of the issue by invoking, ‘the dictates of the Constitution insupport of the Indian Act, giving it a superiority over the Canadian Bill ofRights.”185Therefore, Sanders concludes that, ‘After the experience with the 1969White Paper and the controversies over the Lavell litigation the federalgovernment recognized that a Constitutional bill of rights must explicitly signalwhether Indian special status was to continue or not [and therefore] a protective178 Supra , note 30..179 Sanders, supra , note 21 at 539.180 A. G. Can. v. LaveIl [1974] S. C. R. 1349.181 Sanders, supra , note 21 at 540.182 Ibid.183 Ibid. 545.184 Ibid. 546.185 Ibid. 545.99section along the lines of section 25, should be inserted in the Charter.”186(emphasis added)Others agree. Morton links section 25 to the resolution of, “the problem ofreconciling the Indian Act with the non-discrimination principle of section 15.”187Pentney adds, 9n particular, s. 25 is intended to protect the rights of aboriginalpeoples from being obliterated by the equality rights guarantee contained in s.15 of the Charter.”188Section 29 is similar to section 25 and, according to Justice Wilson,serves a similar function for denominational schools legislation, “It was put theresimply to emphasize that the special treatment guaranteed by the constitution todenominational . . . schools, even if it sits uncomfortably with the concept ofequality.. . is nevertheless not impaired by the Charter.”189THE INTERFACE: A PRINCIPLED BALANCEHowever, as Pentney observes, section 25 is not on its face limited tosection 15 and, “. .. aa Charter right may need to be reconciled with theparticular rights guaranteed to the aboriginal peoples of Canada.”19°Pentney and Manget are two of the very few commentators to confrontthe issue avoided in Thomas 191 and attempt to give life to section 25 byarticulating the interface between the collective right of a community in conflictwith the individual right of a member. Each refers to the lack of availableprecedent to guide the attempt.192,186 Ibid. 553.187 Morton, supra , note 66 at 75.188 Pentney, supra , note 133 at 109.189 Reference Re Bill 30, An Act to Amend the Education Act [1987] 1 S. C. R. 1148 at 1197.190 Pentney, supra , note 133 at 109.191 Supra,note45.192 See supra , note 67 re cases under section 25.100Magnet states:At the same time as the Canadian constitutional systemrecognizes a special need of Canadian minorities for groupautonomy, commitment to a Charter-based system requires thatgroups exercising general governmental functions respectfundamental norms of due process, personal liberty and equality.Thus the systems of individual and group rights in the Chartercome squarely into conflict. There is no readily apparent doctrineto regulate this considerable difficulty.193Pentney states:How can the individual rights of aboriginal persons be dealt withwhen they involve claims contrary to the position of thecollectivity?194.. . there is exceedingly little available scholarshipon which to rely.195Each refers to the 1nterpretive guides”196 section of the Charter andconcludes that a collective right may indeed trump an individual right, 9f thecollective right is vital to the continuance of the group,”197 in the case ofAboriginal collective rights,or, if, “it is necessary to preserve the essentialfeatures of the group’s identity,”198 in the case of multicultural group rights.The analysis, then, would center on the survival of the cultural essence ofthe group. Appropriate respect for individual rights would require acommensurately weighty justification for dilution by a conflicting group right, Onthe other hand, minimum respect for a group right would mandate that it prevailover any individual right that threatens the group’s very existence or reason forexistence.193 Manget, supra , note 156 at 774194 Pentney, supra, note 133 at 51.195 Ibid. at 59.196 Ibid. at 39.197 Ibid. at 53.198 Magnet, supra , note 156 at 774.101The cultural survival rationale for the paramountcy of collective overindividual rights, advocated by this thesis, seeks a principled accommodationwith individual Charter values, rather than the somewhat open and unsubtieInquiry approach, which envisages the potential wholesale exclusion of suchvalues by any conflicting collective right as a matter of local option.199 In thewords of Manget, the more principled approach would, “. . . blunt, but notnegate, the Charter’s force.200 it would refine and confine exclusion of theCharter for the limited, but essential purpose of cultural survival. At the sametime, one hopes it might lead to the possibly very healthy exercise of definingwith precision just what is essential to cultural survival. Chapter five examinesthe extent to which Aboriginal justice is essential to Aboriginal cultural survival.Pentney formulates the collective - individual interface as follows:a particular collectivity must respect the maximum individualrights consonant with the preservation and functioning of thegroup.201 . .. If however the collective right is ‘ancillary’ to the vitalinterests of the group and the individual right is strongly protectedthen the collective should give way.202Acceptance of the concept of a group right necessarily raises theperhaps unsettling possibility that such a right could prevail over traditionallysacrosanct individual rights.203 Nevertheless, if the rationale for the creation orrecognition of a group right is the preservation of cultural difference, it may beappropriate and logically necessary that the right be insulated from a person’sassertion of an individual right that in a real and fundamental way endangersthe cultural vitality of the group.199 The Inquiry advocates that each Aboriginal government consider a tailor- made AboriginalCharter, ‘that incorporates only those fundamental freedoms and civil liberties that do not violatethe beliefs and paramount collective rights of the Aboriginal peoples.’, Inquiry, supra , note 68 at335 and see, chapter 2.200 Manget, supra , note 156 at.775.201 Pentney, supra , note 133 at 53.202 Ibid. , at 54.203“unremitting protection of individual nghts,’ Hunter, supra , note 32.102THE WEIGHTED WORDING OF SECTION 25But is this what section 25 actually means? The direction of section 25 isthat the individual right, “shall not be construed so as to abrogate or derogatefrom” the group right. Pentney observes that these words would appear toproscribe the slightest, ‘diminution, impairment or infringement’ of the groupright,204 whereas, the cultural survival test might be interpreted to permit anymodification of the group right short of a virtual denial of it.The drafting history205 of this provision reveals that the phrase ‘. . . shallnot be construed so as to abrogate or derogate from • ‘ replaced an earlierversion that read, . . shall not be construed as denying the existence of. . .This change was precipitated by arguments to strengthen the provision on thebasis that, “. . . while the Charter may not in the future deny the existence ofcertain Aboriginal rights and freedoms, it could abridge or otherwise modifytheir meaning.”206MOVING THE FULCRUMIt is not at all clear how the interface between as yet barely discernibleAboriginal rights and the individual rights of the Charter eventually will bedefined. Morse refers to this sort of analysis in a slightly different context as, ‘..like trying to describe the interface between a shadow and a brick wall. Needany more be said about the uncertainty of aboriginal and treaty rights.’207However, section 25 is open to an approach that views the language as204 Pentney, supra , note 133 at 111.205 Ibid. at 1 - 8206 Ibid. at 5, quoting Mary Simon. A somewhat similar argument was raised with respect to theMeech Lake Accord reference in section 2.1 (1)(a) to minority language groups “present” inCanada or Quebec: “. . . considerable infringement of the linguistic rights of individuals withinsuch groups would be possible without jeopardizing their ‘presence “, Rebuilding a CanadianConsensus, supra, note 114 at 96.207 Bradford Morse and David Nahwegahbow, The Interaction Between Environmental LawEnforcement and Aboriginal and Treaty Rights in Canada, (paper prepared for Law ReformCommission of Canada,1 985) at 142 [unpublished].103calculated to severely constrain the slightest diminution or impairment of acollective Aboriginal right by a conflicting individual right. Thus, collective rights,unlike any other rights in the Charter, could be interpreted as virtually absolute;a perhaps surprizing result from a document that is said, N. to provide for theunremitting protection of individual rights and liberties”208 If this approach wereadopted, it would be reasonable to anticipate that the concept of a “collectiveright” might be confined correspondingly strictly to those matters which arerealistically essential to the culturally distinct survival of the collective: The testwould remain as cultural survival, but the culture in question may be seen asrather more robust than under a more flexible interpretation. It is submitted thatsome “balancing” of interests will likely take place in the process of defining thecollective interest as a right. Political weighing of values somewhere in thisprocess is unavoidable. It perhaps does not matter in the result if this is done byprudently and selectively defining the content of a collective right, or byassessing the relative values of a hierarchy of collective rights from ancillary toessential. However, it is submitted that section 25 may not readily conform to thelatter course, given the rationale of cultural survival.“Minor” Collective Rights?The nature of the cultural survival rationale advocated by this thesisraises a concern about Pentney’s reference above to collective rights that are,“ancillary to the vital interests of the group.” It may be that such “ancillary”collective interests could not be impaired or diminished by conflicting individualrights once they are found to be collective rights. It is submitted that a collectiveright cannot be ancillary to the vital interests of the group if cultural survival isthe proper test for a collective right.“Unacceptable” Exercise of Collective Rights?This interpretation of the cultural survival rationale also raises a concernabout Sanders’ suggestion that a form of sexual discrimination: “. . . should be208 Hunter, supra, note 32.104acceptable so long as it authentically reflects the continuing traditions of thecommunity. Otherwise it is unacceptable.209 Is this a sufficient definition of acollective right which potentially must prevail over individual rights? In a laterarticle, Sanders points out that, The more difficult cases involve minoritycultural practices that violate highly valued human rights norms, such as life andhealth, sexual equality, and nondiscrimination.21°He refers to examples suchas the Islamic amputation of the hand of a thief, medical treatment for children ofJehova’s Witnesses and African female circumcision.One might wish to add to this list the potentially fatal, non-consensualSpirit Dancing described in Thomas. 211It is submitted that collectivities develop naturally, precisely because theyare different and practice a culture which is distinct. The intention of section 25is that this difference be preserved by protecting certain practices, even thosewunacceptable to mainstream society, such as the examples cited above, fromeven the most valued of individual rights, but only if this is necessary to culturalsurvival or the preservation of that difference. Such an interpretation would notpreserve otherwise authentic cultural traditions, or perhaps the severable partsthereof, that do not meet a cultural survival test or which are ancillary” thereto.209 Sanders, supra , note 21 at 562.210 Sanders, supra , note 14 at 384.211 Supra, note 45.1 04aHISTORICAL I NDLA.N ISM: ADJUDICATION HLATUSChief Justice Lamer noted in Genereux that a parallel system of militaryjustice was Ndeeply entrenched in our history.212 It is submitted that the extentto which a tradition can be said to be ancillary or essential to the culturalsurvival of a community will depend, in part, on the role that tradition has playedin the history of that community. If justice in the contemporary Aboriginalcommunity can be shown to require an adjudication component, then itbecomes relevant to assess the extent to which an Aboriginal justice systemcan lay claim historically to an adjudication base.The absence of an adjudication heritage would not preclude a separateAboriginal justice system, but it would favour the incorporation of Charter valuesto strengthen what might otherwise prove to be a shaky cultural foundation onwhich to build an Aboriginal.justice system that can meet the demands ofactually existing Indianism:Paradoxically... the very success of independence movements inrousing the enthusiasm of the masses and directing it againstforeign domination tended to obscure the frailty and narrowness ofthe cultural foundations upon which those movements rested.213The next chapter examines contemporary fault lines in the harmonyethos which, it is submitted, indicate a fundamental shift in community ethics inthe direction of individualist values and a commensurate need for anadjudication component and Charter values in an Aboriginal justice system.Chapter five examines an historical adjudication hiatus that mirrors thecontemporary adjudication hiatus in the Inquiry position.212 See Genereux, supra , note 160.213 Gibbins and Ponting, supra, note 129 at 187.105CHAPTER 4THE INQUIRY: ADJUDICATION HIATUSINTRODUCTIONThis chapter is divided into two parts. Part one examines fault lines in thehomogeneous harmony ethos1 posited by the Report of the Aboriginal JusticeInquiry of Manitoba 2 which indicate a need for an adjudication process and thevalues of the Canadian Charter of Rights and Freedoms in the contemporaryAboriginal community. It is submitted that the harmony ethos is an accurate, butincomplete, description of actually existing Indianism, which premises aninsufficient response to the demands of contemporary Aboriginal justice.Part two examines the relationship of the small size, or 9ocalness,’1of theAboriginal self-governing unit to the needs of adjudication. The positivemediation implications of this localness are contrasted to certain negativeimplications for adjudicationThis thesis does not question the existence or relevance of the harmonyethos within the contemporary Aboriginal community. The communitarian ethicemphasized by the Inquiry does, in fact, justify a reconciliation-mediationapproach to justice, which may well be more viable within an Aboriginal justicesystem than the dominant system. However, it is submitted that a moreencompassing analysis of the contemporary Aboriginal community would giveappropriate weight to the modernizing and conflict-generating effects of thechapter two.2 Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People(Winnipeg , Queens Printer, August 12, 1991) (Commissioners: Associate Chief Judge A.CHamilton and Associate Chief Judge C.M.Sinclair) [hereinafter Inquiry]Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B of the Canada Act 1982 (U.K.) 1982, c. 11 [hereinafter Charter].106colonization process, outlined in chapter one, which challenge the sufficiency ofthis mediation-reconciliation approach to justice.PART 1: FAULT LINES IN HARMONY ETHOSI NTRODUCTIONThe Inquiry notes that the attitudes, customs, traditions, or mores of theharmony ethos outlined in chapter two, “. . . developed in other times and forother circumstances, but they remain powerful and relevant in Aboriginalsociety today. “4Morse notes that traditional ways have remained alive and will continueto play a valuable role in the future, but acknowledges that, “Interaction betweenthe original inhabitants and what has become the dominant society, along withincreasing urbanization among the aboriginal peoples means that things havechanged irreversibly to some degree.”5 The question is how, and to whatdegree? It is submitted that the colonization process has wrought a degree ofchange which mandates an adjudication component to Aboriginal justice whichcan impose settlement on the irreconcilable conflict which is an inevitableproduct of the individualizing, non-communitarian influences of that process.The Inquiry is silent on the issue of adjudication as the harmony premisegenerates no significant demand for such a process.The apparent confidence of the Inquiry in the sufficiency of its positionbelies the lack of basic research into both the diverse effects of the colonizationprocess on the Aboriginal world view and the nature of traditional Aboriginaljustice mechanisms. As recently as 1979, this field was referred to as “virginInquiry, supra, note 2 at 45.Bradford Morse, “Indigenous Law and State Legal Systems: Conflict and Compatibility” inBradford Morse and Gordon Woodman, eds, Indigenous Law and the State (Dorecht, ForisPublications, Holland, 1987) 101 at 114.107ground,’6 and, in 1981, as, ‘a neglected area of scholarly inquiry.’7 It is furtherdescribed as an area requiring, ‘major in-depth research [as] many traditionally-assumed differences may no longer be valid.’8 In 1986 La Prairie noted that:‘The analysis of the effects of colonization on traditional life remains at a broadand general level. Specific changes in social relations as a result of adaptationto external pressures have not been systematically documented.’9In 1991, theLaw Reform Commission of Canada acknowledged that, ‘. . . despite theextensive study of aboriginal justice issues that has taken place, there are majorgaps in our knowledge.’1°In the relative absence of definitive studies, it is easy to misjudge themodernizing effects of the colonization process. It is submitted that some, theInquiry included, ‘. . . have under-emphasized the impact of mercantile andindustrial colonialism on the native populations,’11 in stressing a somewhat‘romantic’12conception of Aboriginal society. LaPrairie states:The desire to hold on to notions of what appears tohave been a more just, egalitarian, cohesive andless adversarial society is compelling, but the.existence and maintenance of customary law inaboriginal, society in Canada today must beexamined in the contemporary context. Customsevolve from social relations, and it would beunrealistic to expect that rules and social mores6 Dorothy Hepworth, ed., Explorations in Prairie Justice Research (Regina, Canadian PlainsResearch Center, University of Regina, 1979) at 110.?‘ Don McCaskill, Native People and the Justice System, (Paper presented to the Native StudiesConference, Brandon University, November 5-7, 1981) at 1.8 Hepworth, supra., note 6 at 111.Carol La Prairie, Aboriginal Criminal Justice in Canada: Some Theoretical Considerations (Apaper prepared for the Ministry of the Solicitor General of Canada, November,1986) at 8.[unpublished].10 Law Reform Commission of Canada, Report no. 34,Aboriginal Peoples and Criminal Justice(Ottawa, Information Canada, 1991) at 87.Simon Verdun-Jones and Gregory Muirhead, “Natives in the Canadian Justice System: AnOverview,” (1979-80) 7 Crime and Justice 3 at 4.12 Ibid.108would be the same today. . . as they were in precontact time.13On the other hand, while the contemporary Aboriginal probably issomething of a ‘post-industrial’14person, who may well ascribe to or reflectpost-industrial values; some have over-estimated the effect of superficialmodernism on native culture. A Northwest Territories resident notes there is noescaping television with satellite dishes that point south at almost every Arcticcommunity, ‘We get three Detroit channels up here on TV and see everythingthat people in the south see.”5It is this type of shallow and misleading analysis that Jackson arguesinforms the majority judgement in Naqitarvik 16 and, by implication, much ofconventional judicial decision-making about Aboriginal peoples.17 The AlbertaCourt of Appeal rejected the non-custodial recommendation of the local councilof elders, or “Inumarit’, in the case of a Northwest Territories man convicted ofsexual assault, and raised a 90 day intermittent sentence to one of 18 monthsimprisonment. The Court found that the culture in question was not ‘markedlydifferent’ from conventional society because: ‘. . . the incident arose as thevictim and her sister played music on a modern player for which there was anelectric cord. The complaint of sexual assault was conveyed to the police bytelephone and the victim was taken to a modern nursing station for examinationand treatment.’ The Court further found that the lnumarit, “. . . resembles theusual community counselling service rather than the traditional governing andcounselling body of earlier times.’18 Jackson argues that the superficial13 Prairie, supra, note 9at7.14 Verdun-Jones and Muirhead, supra , note 11.15 Miro Cernetig, “Arctic Warms to Christmas Presence” The Globe and Mail (24 December 1991)at Al.16 R v. Naqitarvik (1986) 26 C. C. C. (3d) 193 (AIta. C. A.).17 Michael Jackson, In Search of the Pathways to Justice: Alternative Dispute Resolution inAboriginal Communities (Paper prepared for the Law Reform Commission of Canada, May 15,1991) at 55-66 [unpublished].18 Naqitaivik ,supra, note 16 at 195-1 96.109trappings of modernism which the Aboriginal has inevitably embraced mayconceal continuing and profound cultural difference, albeit adapted tocontemporary reality. The failure to see this difference, naturally results in failureto respect the difference: A substantial sentence of imprisonment, judged bythe community after due deliberation to be unnecessary from the perspective ofthe community, the victim and the accused, is imposed with the clear messageto the community that our non-native elders, or at least some of them, knowbetter than theirs as to what will contribute to a just and orderly society.19Aboriginal adoption of and adaptation to contemporary technology andways of life does not bespeak the abandonment of a distinctive culture anymore than the incorporation of, metal, fabric, shot and glass2° soon aftercontact turned the red man into a white man. Nevertheless, it is submitted thatthere are indications of fault lines within the modern Aboriginal communitysignalling fundamental change to the harmony premise of the Inquiry, whichshould not be ignored by a prudently evolving indigenous system of justice.These fault lines are significant breaches in the homogeneous, harmonious,community-constituting understanding posited by the Inquiry, which justifyconcern about the adjudication hiatus in its analysis.SharingThe communitarian, sharing ethic posited by the Inquiry, outlined inchapter two, has been pervasively eroded by a more individualistically orientedwage and welfare economy. In the past, one truly shared equally in thecollective product of ones individual efforts: NEach person contributes accordingto their ability, each receives according to their need . . . The practice of sharing19 Jackson, supra , note 17 at 64. A section on the punitive attitudes of Aboriginal women, infranote 109, outlines significant public pressure on courts of the Northwest Territories to hand out,“tougher sentences for sexual assault.” The judgement does not indicate whether these factorsinfluenced the Court of Appeal.20 Chapter one, supra, at p. 4.110reminds everyone, regardless of their respective abilities, that collective wellbeing is the object of their conduct and interaction.’21Within such communities, where the functioning mentality encouragedcontinuously since birth is, ‘that each person view themselves as a contributingmember of a group in combination with contributing others,’22 the necessarypreconditions for successful group suasion and mediation of disputes are inplace. The requirement of, ‘a sense of responsibility and will to atone andrestore’23 is more readily fostered in a ‘face-to-face’ community which is,‘unified and internally consistent,’24 and where, ‘. . . .the social relations thatgive rise to individuality did not exist.’25 In the result, ‘conceptions ofappropriate human rights that grow out of a face-to-face communal experiencewill necessarily be different from those that grow out of a society of individualsacting for themselves.’26However, individualism, inequality and community schisms; theantitheses of communitarianism, are engendered by the very different wage andwelfare environment created in the latter stages of the colonizing process. TheCree Report examined the influence of these factors on the Cree of NorthernQuebec and concluded they, ‘. . . had profound effects on customary practicesof sharing, the way people relate to one another, and social control.’27 Thisgeneral dilution of the sharing ethic in conjunction with the other deleteriouseffects of the colonizing process outlined in chapter one results, according to21 Jean-Paul Brodeur, Carol La Prairie and Roger McDonnell, Justice for the Cree: Final Report(Quebec, Cree Regional Authority, 1991) [hereinafter, Cree Report] at 18.Ibid. at 25.23 Chapter two, supra, at p. 7.24 Menno Boldt and J. Anthony Long, ‘Tribal philosophies and The Canadian Charter of rightsand Freedoms’ in, Menno Boldt and J. Anthony Long (in association with Leroy Little Bear),eds,The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto, University of TorontoPress, 1984) 165 at 167.25 Ibid.26 Ibid.27 Cree Report, supra, note 21 at 2.111the Cree Report , in, “. . . real difficulties in handling any sort of dispute in anorderly manner.”28Asch noted similar effects in his study of the introduction of welfare andwage labour to the Dene:The traditional distribution system ensured that therewas little wealth differentiation . . . the introduction ofwelfare payments, in their present form, created theindividualization of poverty and helped relieve thecommunity of the traditional responsibility to help oneanother.• . . in todays circumstances wage labour is often lessof a solution than it is a problem . . . it is acting as asubtle influence to changing values away frommutual sharing and towards individualistic ones.29In many contemporary Aboriginal communities the main source of fundsis externally supplied in the form of grants, transfer payments and socialassistance of various kinds: “On most reserves, vast sums of federal money arespent on welfare and other forms ofsocial assistance - the largest single item inthe budget of the Indian Affairs Department.”30A principle function of local levelpolitics is the distribution of these funds which creates, “internal divisions andpressures,”31anda local, “elite of privileged bureaucrats.”32Shkilnyk documentsthe resultant creation of, “social inequality”33 and, “a hierarchy of status, power,and influence”34centered on band connections. The general picture emerges of28 Ibid. at 36.29 Michael Asch, “The Dene Economy” in, Dene Nation: The Colony Within, Mel Watkins, ed.(Toronto, University of Toronto Press, 1977) at 56, referred to in La Prairie, supra, note 9at 4.30 Geoffrey York, The Dispossessed: Life and Death in Native Canada (U.K., Lester and Orpen,1989) at 60.31 La Prairie, supra, note 9 at 9.32 A. Shkilnyk, .4 Poison Stronger than Love: The Destruction of an Objibwa Community (YaleUniversity, 1985) at 151.Ibid.Ibid. ,at 104.112a stratified society experiencing, ‘a fundamental shift in communal ethics awayfrom the Indian values of mutual sharing and toward the values of individualaccumulation characteristic of our own society.’35Such distinctly non-egalitarian, individualistic symptoms of the colonizingprocess tend to generate conflicts of the irreconcilable variety, which are lessnaturally inclined to the harmonizing influences of communitarian justice andlean to the confrontational side of the mediation-adjudication spectrum.Community-Constituting UnderstandingThe colonizing process has created an ‘internal cohesiveness,’36or,‘community-constituting understanding’37about the need for a distinct justicesystem, however Aboriginal representatives at a recent native justiceconference are reported as unable to form a consensus as to whether such asystem should operate within or without constitutional limitations.38As the CreeReport has noted, 1l• complaints about the structures and systems which affectpeoples lives, may not necessarily translate into a desire to be responsible foror the ability to operate their own systems.’39 There appears to be a consensusabout the failures of the present system and the objective of autonomouschange, but there are indications of internal concern and dissension withrespect to the means, which parallel to some extent the concerns of the largersociety, outlined in chapter one, for the inclusion of Charter values in Aboriginaljustice.Ibid. , at 155.36 Douglas Sanders, “Collective Rights’(l 991) 13 Human Rights Quarterly 368 at 369.‘ Michael McDonald, ‘Should Communities Have Rights? Reflections on Liberal Individualism(1991)4 Can. J. of Law & Jurs. 217 at 231.38 David Shoalts, “Native Courts Inevitable, Chiefs Tell Justice Ministers’ The Globe and Mail (7September 1991) at A5.Cree Report, supra, note 21 at 5.113It is not a simple matter to determine either the nature or the extent of acommunity-constituting understanding with respect to the parameters of aseparate Aboriginal justice system. Mercredi, on behalf of the Assembly of FirstNations (AFN), has repeatedly agreed with the Inquiry position in asserting thatthe Charter is not consistent with Aboriginal collective values.40 However, in theabsence of any draft of the proposed Aboriginal charter of rights, it is as yetunclear precisely what this portends for individual rights in the criminal justicecontext, The extent of Aboriginal support for the position of the AFN is alsounclear. It is frequently noted41 that there is a, ‘. . . fragmentation within theaboriginal population that bedevils analysis in this field.42 The result is that theAboriginal community does not speak with one voice- perhaps it cannot, andpossibly should not, be expected to do so. Long and Boldt note that,Mintraorganizational factionalism [and] interorganizational differences [contributeto the] difficulty in getting agreement on the central issues.”43 They assert thatthe AFN, . . . has never achieved political hegemony over the status Indiancommunity with respect to policy issues that affect all status Indians,TM44 and thatthis difficulty, TMis even greater among the Metis and non-status Indians,TM45 whoare generally recognized as represented by the Native Couhcil of Canada.The difficulties for analysis caused by the lack of a national voice or, Noneumbrella organization,TM46 are compounded by the relatively recent emergenceof the autonomous justice issue, as outlined in chapter one, and by the40“A Constitutional Primer: Aboriginal Rights” The Globe and Mall (11 Januaty 1992) at A6.41 See, for example, Rebuilding A Canadian Consensus: An Analysis of the FederalGovernment’s Proposals For A Renewed Canada (Ottawa ,December, 1991) at 176.42 R. Gibbins and J. Ponting, “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada” in Alan Cairns and Cynthia Williams, research coordinators, The Politics ofGender, Ethnicity and Language in Canada (University of Toronto Press, Toronto,1 984) 171 at174.Anthony Long and Menno Boldt, “Conformity Trap” (1984) 5 Policy Options 5-6.lbid. ,at5.lbid. ,at6.46 Rebuilding A Canadian Consensus: An Analysis of the Federal Government’s Proposals For ARenewed Canada, supra, note 41.114extraordinary, almost frenetic, pace, of as yet unfinished, constitutionaldeliberations, which even Mercredi has characterized as, ‘not very comfortable[and] a process that is not designed to take care, it is not designed to takecaution.’47La Prairie observes that: ‘In general, leaders . . ., take more radicalpositions regarding an autonomous Cree justice system [and] . . . Moregenerally, contrary to what is often put forward by aboriginal politicians, there isnot a consensus in the communities about justice issues. Local leaderscommonly speak for communities on most issues, as do politicians everywhere,but variation in opinion exists and must be accounted for and accommodated inany future Cree justice initiatives.’48It is submitted that the Inquiry and AFN positions do imply a certainhomogeneity of views on the basics of a communitarian-based justice system,which would displace conflicting individualistic Charter values by paramountcollective values. The concern, however, as expressed by, for example, DonnaGreschner, is that, ‘. . . the ideal of community denies the differences betweenpersons.’49 The colonizing process, in the process of eroding the sharing ethic,has created important differences within the local community that a fullyfunctioning, whole, justice system should accommodate and respect.This thesis will not attempt to articulate the details of how an Aboriginaljustice system would actually work in practice. Those that have attempted todefine or codify traditional rules are frustrated by the apparent diffuseness ofsuch rules which they describe as, ‘. . . religious in nature or. . . part of anunarticulated ‘gestalt’ or system of belief,’50 for which they can hope, at best, to‘ Susan Delacourt, “Fast-paced Talks Alarm Natives” The Globe and Mail (22 April 1992) at Al.48 Carol La Prairie, Justice for the Cree: Communities, Crime and Disorder (Quebec, CreeRegional Authority, 1991) at 259.‘ Donna Greschrier, Feminist Concerns With the New Communitarians: We Don’t Need AnotherHero , in A. Hutchinson and L. Green, eds, Law and the Community: The End of Individualism(Toronto, Carswell, 1989) 11 9.at 139 (referring to comments of Iris Young).50 Reflecting Indian Concerns and Values In the Justice System (Joint Study: Government ofCanada, Government of Saskatchewan and the Federation of Saskatchewan Indians, 1985) at 8.hereinafter, Saskatchewan Study]115‘attempt to obtain a ‘feel for’ ‘51 An Aboriginal proposal to the government ofBritish Columbia states that, ‘several researchers have tried to codify Gitksanand Wet’suet’en law and have not succeeded,’ in part because so much of thecontent and interpretation of these laws depends on the specifics of, ‘. . . thecontext of the incident to which it is being applied.’52 It may well be, as theGitksan Proposal contends, that this failure is just another example of theinherent futility of our expecting, ‘to fit the content of one system into thestructure of another. . . It may also be, as Liewellyn and Hoebel apparentlycontended, that the content is something of an.9ncommunicable art.’54Presumably those most affected by resort to traditional ways will fashiontheir own relevant understanding of them. The concern here is the extent towhich such understanding can be said to be ‘community-constituting,’ and theextent to which non-communitarian difference or dissent or fault lines in theotherwise homogeneous harmony ethos, as generally implied by the dilution ofthe sharing ethic, may indicate a need for Charter values, which, as outlined inchapter three, are, ‘. . . designed to protect the equal treatment of individuals ina heterogeneous society.’5551 Ibid.,at7.52 Unlocking Aboriginal Justice: Alternative Dispute Resolution for the Gitksan and Wet’suet’enPeople (A proposal to the B.C. Ministry of the Attorney General by the Gitksan and Wet’suetenEducation Society, and others, March 1985) at 25 [unpublished] hereinafter, Gitksan Proposal].Ibid.Saskatchewan Study, supra, note 50 at 8.F. L. Morton “Group Rights Versus Individual Rights in the Charter: The Special Cases ofNatives and the Quebecois” in, Minorities and the Canadian State , Neil Nevitte and AlanKornberg, eds, (Oakville, Mosaic Press, 1985) 71 at 81.116EROSION OF TRADITIONAL AumoRrrYThe Cree Report confirms the ‘erosion of traditional authority,’56 whichmight be anticipated as a result of the political subjugation, outlined in chapterone. It does not suggest, that the authoritative role of the elders and bandcouncils has collapsed, but that, ‘it is, however, increasingly questioned.’57TheSaskatchewan Study likewise found that, ‘. . . traditional practices have beenundermined in Indian communities leading to a loss of respect for elders,leadership, authority, traditional values and jflstltUtiofls.’58 This is not the mostfertile ground for the Aboriginal leadership to nurture the harmony ethos positedby the Inqui,y.YOUTHAs might be expected, a significant source of potential conflict withtraditional values is the youth segment of the Aboriginal community, which hasbeen increasingly exposed to other, and sometimes competing, individualisticvalues. The Saskatchewan Study refers to this problem, which, it is submitted,must be fairly widespread:’. . the first generation of those educated outside thecommunity are starting to take control and there is a struggle with the elders inestablishing mechanisms for problem solving.’59 A generation gap is commonto all societies, but within the Aboriginal community it may assume moreominous cultural proportions because, ‘it implies a genuine reluctance towardthe traditional way of life and a search for models outside those provided by thecommunity.’6°This tension may be particularly important in the context ofcriminal justice as the principle consumers of the product are, of course, the56 Cree Report, supra , note 21 at 57.Ibid.58 Saskatchewan Study,supra, note 50 at 35-36.Ibid., at 11.60 Cree Report, supra, note 21 at 57.117young. 61 The combination of a lower life expectancy and a higher birth rateresults in a relatively younger Aboriginal population,62 which is likely to bereflected in the Aboriginal crime rate. The Inquiry notes that while Aboriginaladults are over-represented in the adult system, “we find even higherproportions of young Aboriginal people in the youth justice system.”63 Theyoung generally, and disaffected youthful offenders in particular, are notnaturally inclined to harmony and reconciliation. This natural disinclination tothe harmony ethos is intensified by perhaps intermittent, but largelyinescapable, contact with urban values and the diaspora first mentioned inchapter three.DIASPORAConstitutional Affairs Minister Clark supports the principle of Aboriginalself-government, but as the focus narrows to detail, he poses, “ten criticalquestions,” one of which is, “How can self-government accommodate the vastlydifferent needs of on-and off-reserve natives?”64 This question refers to the“diaspora,”65 or, the “unlanded” sub-group of the Aboriginal community, “forwhom the scope and potential for self-governing institutions is extremelylimited,”66 because they lack what is generally assumed to be essential for self-governance; a territorial base:”. . . the proposals of aboriginal peoples for self-government cover a wide variety of possibilities, and vary greatly in their degreeof development. One common element in all of these proposals is an61 La Prairie, supra, note 48 at 260.62 Jim Sutherland, “All About Crime” Western Living (November 1991) 58a at 58c.63 Inquiry, supra, note 2 at 549.64 Peter O’NeiI, “Conference Fails to Shed Light on Future of Self-government” The VancouverSun (16 March 1992) at Ag.65 Gibbins and Ponting, supra, note 42 at 175.66 Ibid. , at 174 and see: C.E.S. Franks, ed., Aboriginal Peoples and Constitutional Reform:Background Paper 12, (Institute of Intergovernmental Relations, Kingston, 1987) at 35.118assumption that self-government exists on a land base.”67 The Inquiry extendsthis assumption to the jurisdiction of Aboriginal justice: “For First Nations, thequestion of territory is relatively clear. They have and would continue to havejurisdiction over the land included within their reserve.”68 The Inquiry adds:“Their distinctiveness as a community assumes that they also have a distinctivegeographical area dedicated or available to them for their use, not necessarilyon an exclusive basis.”69Statistics about the Aboriginal population are often confusing andincomplete, however, it appears that this sub-group is a significant portion of theCanadian Aboriginal community. Gibbins and Ponting suggest that this“marginalized’ population, “probably exceeds the corn m unity-based populationby a margin of three or four to one. .‘70 A Globe and Mail editorial reports that,“two-thirds of Canada’s aboriginal population.. .live off reserve.”71 In any event,this diaspora likely constitutes at least half and perhaps even a majority of thetotal Aboriginal population:In Canada, less than half of the aboriginal peoples• are currently ‘landed’.72A recent Statistics Canada report, called Canada’sOff-Reserve Aboriginal Population, drawn from the1986 census, shows that 50 per cent of Canada’sIndians live in off-reserve centers.7367 David C Hawkes, Aboriginal Seff-Govemment (Kingston, Queens University, 1986) at 25.68 Inquiiy, supra , note 2 at 319.69 Ibid. , at 318. The Inquiry stresses that,”One does not need to own land in order to assertjurisdiction over it,” and cites examples, mostly Metis, of Aboriginal communities which assertjurisdiction over land they do not technically own. These examples do not seem to relate to theproblem of the diaspora.70 Gibbins and Ponting, supra, note 42 at 202.71“For Self-Government, In a Canadian Context,” The Globe and Mall (3 June 1992) at A22.72 Robert Groves, Options for Legal Pluralism in Canada (Abstract, Native Council of Canada,Ottawa, 1989) at 224 [unpublished].Richard Wagamese, “Alienated and Alone: The Urban Indian”, The Vancouver Sun (20 January1992) at AlO.119This marginalized group not only encompasses mostof the non-status Indian population, but also extendsto Metis living in urban areas and to theapproximately one in four status Indians who liveoutside Indian reserves and Crown land settlements.Thus, in focusing on self-government, politicianshave in large part excluded from the political agendathe majority of the aboriginal population . .. .‘The Inquiry confirms the general proportions of the unlanded communityin Manitoba: . . . 37 per cent of Aboriginal people live on reserves and 63 percent live off reserves.’75 The Inquiry does not, however, address the apparentfact that this significant group could be substantially excluded from the benefitsof autonomous justice and, presumably, does not consider this fact significant.In fairness to the Inquiry, the relevance of the diaspora may not beobvious as, perhaps, that voice has not yet been heard clearly. Ontario is saidto, “be just beginning to deal with the problem of ensuring the rights ofaboriginals living off the reserve,’76 which constitute 140,000 of the 200, 000Aboriginals in Ontario.77 Wagamese reports that: “the AFN and the NCC78 areout of reach. Although they purport to represent hundreds of thousands of nativepeople, those of us in the cities never see them. In Calgary, for instance, thereare 14,000 native people. Despite that figure, there is neither an AFN or NCCoffice here.’79 Similar sentiments are expressed by Rodney Bobiwash,representing the Native Canadian Center, which is trying to organize Toronto’s65,000 Indians in the absence of any NCC presence: “We consider ourselvesGibbins and Ponting, supra , note 42 at 175.Inquily , supra , note 2 at 8.76 Richard Mackie, “Self-rule for Natives Tall Order, Panel Told: In Ontario Most Not on Reserves”The Globe and Mail (30 July 1991) at A12.Ibid.78 Native Council of Canada representing 600,000 non-status, off-reserve and urban Indians, perDeborah Wilson, “Loud, Clear Voice of the other’ Indians” The Globe and Mail (17 December1991) at Al.Wagamese, supra , note 73.120the largest reserve in North America.”80 Indeed, Toronto is reported to have, “alarger aboriginal population than Northern Ontario or the NorthwestTerritories. “81Despite the relative lack of input from the diaspora to date, it is apparentthat the urban areas are very important places both for the presence ofAboriginals and Aboriginal crime. Jackson notes, “there is considerable mobilitybetween native and non-native communities and . . .a certain gravitational pull,particularly of young people, away from their communities. •“82 In addition, ofcourse, the urban space and all that implies has expanded ever closer to thereserves: “migration into the urban centers has continued to escalate, just assprawling metropolitan areas, have encroached on reserves.”83 Also, it isreported that one third of reserves in Canada are properly classified as urban.84The gravitational attraction of the city and its relevance to crime, particularly forAboriginal youth, is suggested by the apparent fact that most Aboriginaloffenders report leaving home for the city before they are 16 and being chargedfor the first time shortly thereafter.85 Jackson states that, “the majority ofoffences committed by native offenders are committed out of bandjurisdiction.”86 Justice Dussault, co-chairman of The Royal Commission onAboriginal Peoples, notes that, “the migration of natives- particularly the young- to cities shows no signs of abating.80“Urban Natives Fear Self-Government Will Leave Them Out In the Cold” The Globe and Mall (28December 1991) at Al.81 Franks, supra, note 66 at 2482 Michael Jackson, “Locking Up Natives in Canada” (1989) 23: 2 U B.C. L, Rev. 215 at 272.83 Christie Jefferson, Conquest by Law: A Betrayal of Justice in Canada (Burnaby, NorthernJustice Society, Simon Fraser University, 1988) [unpublished] at 278.84 Rudy Platiel, “Status Indians Number Half a Million”, The Globe and Mail (30 August 1990) atA7.85 Jefferson, supra, note 8386 Jackson, supra, note 82 at 255.87 Rudy Platiel, “Royal Commission on Native People Set to Begin” The Globe and Mail (21 April1992) at Al.121It is submitted that there is relevance to the diaspora which should not beignored. At a very basic level of utility and practicality, a level generally avoidedby this thesis, it appears that the Inquiry solution of a fundamentally differentautonomous Aboriginal justice system has little direct applicability to at leasthalf of the Aboriginal crime and consequent over-representation that it sets outto address. At a more general level, it is submitted that the diaspora representsa not insignificant breach in the homogeneous harmony ethic presented by theInquiry. Just as Aboriginals were contaminated criminally by their intercoursewith whites, as caustically observed by Washington Irving in chapter two,88 sotoo many, if not most, will have become exposed to, perhaps accustomed to andeven attracted by, the individualistic attitudes and concomitant rights-basedmentality of the urban environment, and thus less amenable to communitarianvalues. One assumes a considerable flow, back and forth between the urbanand reserve communities: N ..an Indian reservation is not an island unto itself,and there is constant intercourse between it and the surroundingcommunities.”89The, “mobility between native and non-native communities”noted by Jackson above90 must inject an added degree of individualism into theself-governing units which will increase demand for an adjudication componentand associated Charter values. Additionally, as discussed more fully in chapterfive, the Charter could serve to unite in a significant way the two possibly verydifferent justice systems to which Aboriginals will be subject depending onwhether they happen to commit an offence on or off-reserve. Schwartz statesthat: . . the ideal should be that an accused will not be treated any moreharshly or leniently on account of his ethnic origin. Nor should the groupaffiliation of the victim or the place where the offence occurred, diminish thedemands of equal justice.”91 Brakel argues that, uit is anomalous in the latterpart of the twentieth century that one small ethnic group should be separated88 Ken Peak, “Criminal Justice, Law , and Policy in Indian Country: A Historical Perspective”,(1989) 17 Journal of Criminal Justice 393 at 394.89 Thomas W. Lucke, “Indian Law: Recognition of Field Values” (1977) The Indian Historian, Vol.10, No.3, 42 at 46.90 Jackson, supra, note 82.91 Bryan Schwartz, “A Separate Justice System?”19 Man. L. J. 77 at 80.122from the judicial system that extends to all other citizens N9 Thesesentiments largely refer to uniformity between white and aboriginal societywhich is a slightly different issue also addressed in chapter five. Whatever themerits of justice separation from the white system, the merits of the Charter as aminimal bond within the larger Aboriginal society itself should not beoverlooked. It is assumed that many members of the diaspora will wish tocontinue an association with their landed friends and relatives and to continueto assert an Aboriginal identification. Charter values could provide a meaningfulbridge between these two major Aboriginal communities, which may otherwisebe driven further apart or ghetto-ized by any failure of landed self-government tosufficiently respect individual rights which its unlanded brethren may have,perhaps unavoidably, come to expect. If the Inquiry were merely repeating theNmildN proposals of the past, outlined in chapter one, which involved tinkeringwith the common system rather than creating a radically different system, suchbridging concerns might not be relevant. It is the very fact of fundamentalchange, one likely necessarily restricted to the reserve, that has the potential tosegregate Aboriginal kin and, ironically, to increase the assimilationist pull ofthe urban magnet in the absence of the leavening effects of the Charter.DISCRETE AND INSULAR MINORITIESResistance to communitarian paramountcy and a possible correlativeattraction to individual rights is not limited to the urban Aboriginal, or the self-centered or mobile young. It is obvious that the victim, Mr Thomas, did notsubscribe to the particular tradition of Spirit Dancing, but there is somesuggestion in the case that some others within the community shared hisdissent: “Dorothy Joe expressed the opinion that she did not think it was right forthem to do it.”9392 Samuel Brakel, American Indian Tribal Courts: The Costs of Separate Justice (American BarFoundation, 1978) at 100.David Thomas v.Daniel Norris et. al(16 September 1991), Victoria 88/412 (B. C. S. C. ) at 18.123Freda Cooper, a Salish woman, raises the possibility of a broaderdimension to this dissent encompassing a “discrete and insular minority,”94which is no stranger to a “tradition of disfavour,”95 namely, the AboriginalChristian community; again, largely a product of the colonization process, whichmay view such practices as akin to paganism.96 It is reported that Mrs Cooper’s,“major fear is the spirit dancers who sometimes roam her reserve late at nightcarrying heavy sticks with their faces painted.” She is further reported asconcerned that, “the traditional ways of her Salish community have returned inthe past 20 years and Christian believers now make up a minority of thepopulation [that is[ vulnerable and require the fundamental protection of theCharter. “‘flLAW AND ORDER ATTfl1JDEsMrs Cooper expresses a protectionist, fear-of-crime, attitude common tomainstream society and, contrary to the thrust of the Inquiry, increasingly part ofAboriginal society.Brakel’s well-known, if not universally admired, critical study of theAmerican tribal court system in the late 1970s, attempted to include someinformation about the, “day-to-day affairs of contemporary reservation life.”98 Heconcluded, inter alia, that, whatever the mediation-reconciliation rhetoric of thepolitical leaders, such attitudes were, N not part of their [the judges, partiesIn, Andrewsv. Law Society of British Columbia [1989] 56 D.L.R. (4th) 1 at 32, Wilson J. appliesthis concept borrowed from American jurisprudence to include non-citizens as members of agroup in special need of Charter protection.In, City of Cleburne, Texas v. Cleburne LWing Center, 87 L. Ed. (2d) 313 (1985) (U.S.S.C.) at329, Stevens J. refers to a “strict scrutiny” test of legislation discriminating against groups whichhave been, “subjected to a ‘tradition of disfavor96 The mother-in-law of a victim of the ritual in 1990 refers to the practice as “shamanism” and is ofthe view that”. . . shamanism is witchcraft and the healing spirits invoked by shamans are evil.”David Cunningham, “Take Two Roots and Call In the Morning” British Columbia Report (8 June1992) at 10.‘ Jack Aubrey, “Fearful Native Women Plead for Protection Against Ancient Rituals” TheVancouver Sun (16 March 1992) at A3.98 Brakel, supra, note 92 at 1124and reservation residents] operational language . . .[and] . . .verbalizationsabout justice on the reservations were not different from those elsewhere”99:The so-called traditional goals of mediation andharmony do not appear to weigh in the routinethoughts and actions of. . .the reservation residents.Instead, talk on the subjects of justice and crimetook a conventional, unsophisticated, law-and-orderform . . . residents spoke of being tougher on troublemakers.100This attitude, if common, seems at variance with the Inquiry’s noncoercion ethic and its observation, outlined in chapter two, that, “sentencing theoffender to incarceration . . . is viewed by Aboriginal people as as a totalvindication of the wrongdoer and an abdication of duty by the justice system.”’°1It seems more consistent with the “soft-on-crime” criticism of the justice systemso often heard in the dominant society, which the Inquiry implies is alone inseeing, “retribution as an end in itself.”102 The Cree Report confirms to someextent the relevance of Brakel’s observations about this retributive attitude to theCanadian Aboriginal scene: “The signs. that the criminal justice system wasoperating much below expectations are not markedly different in the Creecommunity than in the rest of Canada. People complain that the criminalsanctions imposed by the judges are in a significant proportion of cases overlylenient . . .non-custodial sentences sorely lack credibility and are perceived asnon-sanctions. “103Ibid. , at 97.100 Ibid.101 Inquiry, supra, note 2 at 37.102 Ibid.103 Cree Report, supra, note 21 at 59-60.125WomenSuch punitive attitudes are the polar opposite of the reconciliationpremise of the Inquiry, but appear to be espoused most vehemently by asignificant portion of the Aboriginal community, namely Aboriginal women, whoare described by the Inquiry as among, “the least powerful members of thecommunity”104 and subject to, “. . . unconscionable levels of domesticviolence,”105 which, . . has reached epidemic proportions.”106 Indeed this istrue, if statistics reported by the Canadian Committee on Violence AgainstWomen, which recall Shkilnyk’s anecdotal descriptions of abuse outlined inchapter two,107 are even approximately correct: “Eight women of ten aresubjected to physical abuse. In the Northwest Territories, 80 per cent of nativegirls . . . are sexually abused. Gang rape is a common occurrence.”108 Mr.Justice de Weerdt, the Senior Judge of the Supreme Court of the NorthwestTerritories, reported in 1989, that petitions had circulated in that area for severalyears signed by hundreds of native women . . pleading for less lenientsentencing and pre-trial treatment of violent offenders and especially sexoffenders.”109 These sentiments are repeated in 1992 by Mary Sillett , thepresident of the National Inuit Women’s Association and member of the RoyalCommission on Aboriginal Peoples, who is reportedly of the view that, “Judgesin the Northwest Territories must start handing out tougher sentences for sexualassaults [and], while it is difficult for those convicted of crimes to be sent away104 Inquiy, supra, note 2 at 481.105 Ibid. , at 475.106 Ibid. ,at481.107 Shkilnyk, supra, note 32.108 Lysiane Gagnon, “Anglo Feminists Aren’t Standing Up for Their Native Sisters” The Globe andMall (28 March 1992) at D3.109 Justice Mark M. de Weerdt, Opening Remarks, Conference on Discrimination in the Law andthe Administration of Justice, Kananakis , Alberta (Canadian Institute for the Administration ofJustice (12 October 1989) at 14 [unpublished].126for lengthy periods to southern penitentiaries, it’s also difficult to the victim whenher attacker is back in the community in a few months.”110These sentiments indicate a need for a justice system that can resort toNtrue penal consequences”111 rather more often than the Inquiry harmonypremise would seem to imply. They also .highlight the obvious fact that,“community sanctions do not work when they are not supported by thecommunity”112 and, “releasing an offender within a small community, where hisor her behaviour had been a major factor of disruption, is not a move withobvious benefit to the community.”’13A comprehensive Aboriginal justice system should be able to reflect thisretribution component, which appears to constitute a legitimate part of theAboriginal community understanding and expectation about justice.TYRANNYThe position of Aboriginal women will be examined more closely, partlybecause they have emerged as the most organized and vociferous “secondcommunity”’14 probably exceeding in impact the diaspora, but also becausetheir concerns merge into the larger, more general, issue of the “tyranny of themajority,”115 which was identified in chapter three as a major theoreticalreservation expressed by liberals about communitarianism. It now appears thatthe concerted campaign of Aboriginal women to retain some Charter valuesmay have persuaded the Assembly of First Nations to temper its opposition and110”lnuit Leaders Call for Stiffer Sentencing” The Globe and Mall (29 January 1992) at A6.111 R. v. Genereux [1992] S. C. J. No. 10 at 20.112 Cree Report, supra, note 21 at 61.113 Ibid. ,at 42.114 McDonald, supra, note 37 at 231.115 Gibbinsand Ponting, supra, note 42 at 218.127at least recognize gender equality in Aboriginal law.116 However, it is submittedthat the concerns of women transcend the specific problem of abuse and thegeneral issue of feminist equality to raise the potential of local totalitarianism inthe absence of Charter constraint.One must be careful not to exaggerate, or infer too much from, thisrecently voiced, but fairly loud, dissent. Much of it stems from the concerns of so-called ‘Bill C-31 Indians,’ who had previously lost their status on marrying anon-native, Indeed Mrs Jeanette Corbiere Lavell, whose loss in the SupremeCourt of Canada117 in 1974 galvanized the Aboriginal women’s rightsmovement, is a former head of the Native Women’s Association of Canada.118The 1985 legislation, which permitted women to regain status and otherwiseshare in the benefits thereof, was actively resisted by the male-dominatedpower structure, and some may have even resisted their return after thelegislation was passed.’19 The rationale of the men for their opposition and thedynamics of this complex political and legal issue do not concern this thesis andhave been covered elsewhere,’2°but it appears that the concerns of Aboriginalwomen go far beyond this genesis. The extent of their support is not entirelyclear, but is not without significance. The Native Women’s Association ofCanada appears to be the lead group representing 120,000 women,12’supplemented by the Native Mediation Representatives, which reports amembership of 350 on 20 reserves in Manitoba and Ontario,’22 the Indigenous116 See, “Dealing with Native Demands” The Globe and Mail (30 April 1992) at A20.117A. G. Can. v. LavelI,[1974] S. C. R. 1349.118 Darcy Henton, “Women Fear Their Communities Will be Dictatorships” The Vancouver Sun(21 January 1992) at A6. See chapter three, supra, for a brief reference to this case.119 Sarah Scott, “Aboriginal Men Have Learned Sexism, Women Fearing Self-Rule on ReserveSay” The Vancouver Sun (30 March 1992) at A7.120 Douglas Sanders, “The Renewal of Indian Special Status” in, Bayefsky and Eberts, (eds)Equality Rights and The Canadian Charter of Rights and Freedoms, 529 at 539- 547.121 Scott, supra, note 119.122 Perils Lurk in Self-Rule, Outsiders’ Group Says” The Vancouver Sun (21 February 1992) at128Women’s Collective of Manitoba123 and the Aboriginal Womens Unity Coalition,which appears to represent urban Aboriginal women.124A brief summary of their expressed concerns, which recall themes similarto Adams’ outlined in chapter two,125 lends support to the view of this thesis thatthat the conflict-suppressing, non-confrontational communitarian ethic is aninsufficient description of actually existing lndianism. The unifying themes arecontrolling power and facilitating channels of dissent, which echo the values ofliberalism as a civilized restraint on communitarian excess.Grace Meconse, of the Native Mediation Representatives, reportedlyalleges, inter alia, that:Native administrations are rife with corruption.126It is a dictatorship-type of leadership at the band levelinvolving rigged elections, misuse of band moneyand intimidation of opponents.127If you are friends of the chief you can have it all- anew house, a new car, you name it. If you are not arelative or a friend of the Chief, you can be deprivedof anything and everything.’28Some were denied jobs, others had their welfarebenefits cut and others have been told they’re notgoing to be given housing or have their universityfees paid simply because the chief didn’t like them,123 Ibid.124 Rudy Platiel, ‘Aboriginal Women Challenge Leadership” The Globe and Mail (24 April 1992) atA4.125 Howard Adams, Prison of Grass: Canada from a Native Point of View (Saskatoon, Fifth House,1989).126 Perils, supra, note 122.127 Ibid.128 Ibid.129wanted to give the job to a relative, or just didn’t feellike it.129Winnie Giesbecht, of the Indigenous Women’s Collective of Manitoba,reportedly expresses concerns familiar to any society and, apparently, notexcluded from Aboriginal society:Native leaders are seeking more power- a politicianis a politician. A politician is there for one reason - forthemselves. 130Gail Stacey-Moore, of the Native Women’s Association of Canada,expresses the individual-rights thread which seems to connect these concerns.She reportedly believes that Aboriginal men have 1earned to discriminate” andher association “wants the Charter to protect native individuals against unfairactions of native governments.These concerns about male power and influence are confirmed to adegree by the Inquiry, however it focuses more on the specific issue of domesticviolence:Most chiefs and council members are male and oftenexhibit bias in favour or the male partner in adomestic situation. This can effectively chase thewoman from the home and community.132The unwillingness of chiefs and councils to addressthe plight of women and children suffering abuse atthe hands of husbands and fathers is quitealarming.133129 Patrick Nagle, “Fear of Chiefs Prompts Self-Government Battle” The Vancouver Sun (2 April1992) at A8.130 Perils, supra, note 122.131 Scott, supra, note 119.132 Inquiry, supra, note 2 at 485.133 Ibid.130Mrs Corbiere Lavell reportedly expands her concern about Charterexclusion beyond the particular concerns of women:There will not be one person in our first nationscommunities who won’t be potentially at risk from theresult of this exclusion.134It may be that the views expressed above do not reflect the dominantvalues within Aboriginal society. They may not even fully represent feministopinion. However, they do reveal a significant element of dis-unity, or anapparent lack of a community-constituting understanding about theparamountcy of communitarian values, that further challenges thehomogeneous harmony premise of the Inquiry. Diversity of opinion and dissentfrom communitarian values are a product of the weakening of traditionalauthority and values consequent upon interaction with the values of thedominant society. A society which is relatively less homogeneous and morestratified than that posited by the Inquiry, will likely generate tensions andconflicts, riven with concerns for individualistic values, that are less amenable tomediated compromise and voluntary sublimation of the individual interest to thegeneral communitarian will. Instead, particularly in the context of very smallAboriginal communities, the theoretical concern about the imposition of thegeneral will or the ‘Kolkhose Steamroller,’135 outlined in chapter three, appearsmanifestly warranted. A spokesperson for the Aboriginal Womens UnityCoalition states that, ‘Aboriginal women have been reluctant in the past tochallenge the positions taken by the leadership in the perceived ‘need topresent a unified front to the outside society which oppresses us equally.”136 It isreported that some of the chiefs had warned the women not to speak outpublicly on the issue, as so to do is, ‘divisive and harmful to natives’ politicalagenda.”137 Gibbins and Ponting refer to this potential threat to the secularIndian and the liberal value of individualized choice as follows: “. . . in the case134 Henton, supra, note 118135 Joseph Manget, “Collective Rights, Cultural Autonomy and the Canadian State” (1986) 32McGill L. J. 171 at 181.136 Platiel, supra, note 124.137 The Globe and Mail (16 December 1991) at A4.131of extreme smallness we might well find a preoccupation with what in Quebecwas called ‘Ia survivance’ (the struggle to survive as a distinct group). As anethos this can produce a rigid conservatism that, at the level of personal lifestyleand choices, is far from liberating.138Richard Wagamese describes a particular incident which personalizesthis general potential. A group of Aboriginal people, including himself, werediscussing Oka shortly after that momentous assertion of Aboriginal rights,when an Aboriginal woman suddenly:blurted out that she strongly disagreed with theMohawk position. She was offended at what she feltwere outright terrorist tactics. She disagreed with theidea of the Warriors masking themselves andquestioned whether traditional philosophy advocatedthe use of disguise in battle. Just as suddenly thequiet venom which had been directed towards thegovernments of Quebec and Canada, the military,media and 500 years of history was redirectedtoward her. Her lndianness was challenged, herdevotion to- her. people questioned, herunderstanding of cultural things denigrated and herdegree of assimilation into mainstream attitudes,lifestyles and thinking were outlined inuncompromising and uncomplimentary fashion. Ithad been some years since I’d heard the word‘apple’ used against a native person but I heard itthen. An apple of course, is red on the outside andwhite inside. As putdowns go in Indian country, it’s aslow as you can go. It’s the ultimate denunciation.139Wagamese points out that often solidarity on issues, is linked to culturalsurvival, “Ia survivance,” to the point that, “barricades, demonstrations, protestsand armed confrontations result in a mass exodus on to the side of the Indiansinvolved without regard for other possibilities.14°He feels that . . . Like138 Gibbins and Ponting, supra, note 42 at 184.139 Richard Wagamese, “Every Voice Has a Right To Be Heard” The Vancouver Sun (13 January1992) at AlO.140 Ibid.132everyone else, native peoples need free-thinkers and challengers within theirown communities to foster the development of their circles.TM141Berger’s Fragile Freedoms refers to the likes of Solzhenitsyn, Biko,Walsea, Timerman and others such as this woman who, .. . have claimed theright to question - and to challenge - the political ideas undergirding theregimes in their countries. They speak for all mankind.142Rule of Men or LawA function of Charter values is to protect such possibly contrary-mindedindividuals from the potentially intimidating power of the group, or its governinginstitutions, to impose its particular, •collective definition of the good,TM asoutlined in chapter three.’Wendy Grant, chief of the Musqueam band and vice-chief of theAssembly of First Nations in British Columbia, is reported to have responded tothe concerns of Aboriginal women by opposing resort to, tmlegal documents suchas the Charter,TM144 and asserting that their real protection lies in trusting FirstNations governments to do the right thing:self-governing First Nations must be trusted toanswer the collective needs of their communitiesincluding perceived problems with traditionalpractices. You have to understand that we areresponsible governments. If there is a concern aboutthe long house and the spiritual practices, we willtake care of that.145141 Ibid.142 Thomas R Berger, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto, Clarke,Irwin and Co. Ltd., 1982) at i.14.3 Chapter three, supra, at 79.144 Rudy Platiel, “Aboriginal Women Divide on Constitutional Protection” The Globe and Mall (20January 1992) at A3.145 Aubrey, supra, note 96.133This attitude betrays a probably sincere, but somewhat naive faith in therule of man (or woman), or what chapter five refers to as the, “ingenuity of themoment,” over the rule of law. It assumes the uniformly beneficent use ofpowers which are potentially despotic in the absence of meaningful control. Italso appears to minimize the stated Aboriginal commitment to the paramountcyof collective rights over conflicting individual rights. W.P. Kinsella’s character,Ballard Longbow, counselled against trusting white government as follows:“Trusting the government is like asking Colonel Sanders to babysit yourchickens.”’46 It is, with respect, a mistake to be complacent about any potentialabuse of power. All governments, past and present, Aboriginal or otherwise,sooner or later, advertantly or inadvertantly, threaten the freedom of theircitizens. At best this is effected through the, “subtle despotism of theinterventionist state”47 and,. at worst, by the excesses of totalitarianism. Tocounsel that Charter values advocated by Aboriginal women and others are notrequired, is either to advocate the need for a closed society where, “the stateknows best,” or, to believe that such governments will never abuse such powersand, therefore, that such rights are superfluous. History suggests that, “abuse ofthe individual by the state is a cross-cultural phenomenon,”148 and there is noreason to believe that Aboriginal governments will be the sole exception.Indeed such governments may be particularly prone to the “tyranny of themajority” which Gibbins and Ponting describe as follows:’49In the debate surrounding the establishment of theUS Constitution in the late 1700’s, U.S. nationalistsassociated with James Madison developed agenerally compelling argument that the rights andfreedoms of individuals are most likely to bethreatened in small, relatively homogeneouscommunities. Where social and economic diversity islacking, Madison argued, the tyranny of the majorityis most likely to prevail. Therefore, individual rightsand freedoms are best protected within larger, more1 W.P Kinsella, “Jokemaker” in Born Indian (Oberon Press, 1981) at 39.147 John Gaibraith and Tom Velk, “What It Is and what It Isn’t” The Globe and Mall (20 February1992) at A17.1 Steven Muhiberger, “Individual Comes First” The Globe and Mall (21 November 1992) at Al 8.149 Gibbins and Ponting, supra, note 42 at 218.134diverse communities, where it is more difficult toarticulate a majority will and a multitude of conflictingand competing interests fragment and immobilize themajority.This argument seems of special relevance toaboriginal communities which are not only small butvery homogeneous relative to the larger Canadianpopulation. Within such aboriginal comm unities,individual rights and freedoms may come underintensified pressure. Moreover, the small size ofcommunities may prevent any effective separation ofpowers, and thus may compromise the neutrality ofgovernment. In a trial, for example, it could wellhappen that the defendant, the police, the lawyers,the judge, the jury and the aggrieved would all beknown to one another; many could be linked by tiesof kinship and clan, Whether justice would prevail insuch a situation is, of course, dependent on the wayin which one would define justice,15°There is astrong possibility,however, that the proceduralfoundations of the Canadian justice system wouldnot prevailPART TWO: LOCALNESSThese references to Mtyranny introduce the closely related problems ofjudicial bias and abuse of power, which may be magnified by the small size, orwhat this thesis will refer to as, the 9ocalness,M of such governing units. Theconcept of 9ocalnessu is intended to distinguish the attributes, positive andnegative, of small size, from the mere technical capacity of small numbers ofpeople to govern themselves. The fault lines in the harmony ethos outlinedabove suggest a greater need for the process of adjudication than themediation-reconciliation emphasis of the inquiry would seem to imply. Thenegative tendencies of localness raised by Madison tend to inhibit a fair andeffective adjudication process and invite Charter modulation. At the same time,150 The ends and means of Mjustice, whether Aboriginal or conventional, are analyzed in chapterfive.135however, certain obverse positive aspects of this same localness strengthen themediation-reconciliation orientation so natural to these communities.BIASThe concern for partial or biased justice is not unique to the Aboriginalsystem. Political interference and judicial favoritism or, “cronyism,” was commonin American law enforcement at the turn of the twentieth century,151 and wasalso noted in both Upper and Lower Canada: . . the dispensation of justicewas attended by unsavoury political favoritism that did not lend prestige to thesystem.”’52 However, the traditions of the British common law have firmlyingrained the independence of the judiciary into the fabric of the administrationof conventional justice, and, periodic breaches of that tradition are generallyadequately remedied by the Charter guarantee of an “independent andimpartial tribunal,”153 which the Supreme Court of Canada, in Genereux,confirms is, u• fundamental not only to the capacity to do justice in a particularcase but also to individual and public confidence in the administration ofjustice.”154 The potential for such bias in the Aboriginal system may be, “.accentuated in the closed societies of the reservations, where there are notraditions of separation of powers in government or of judicial professionalism inparticular.”55Similar concerns were noted in La Prairie’s study of the Cree whostressed, “the need for fairness and objectivity and for independence from localpolitics and politicians,”156 and who were, “adamant. . . about not having judges151 Brakel, supra, note 92 at 96152 Jefferson, supra, note 83 at 102.153 Charter, supra, note 3, section 11(d).Genereux, supra, note 111 at 25.155 Brakel, supra, note 92 at 109.156 La Prairie, supra, note 48 at 22.136who are part of formal structures sitting in home communities.157 The Creewere also concerned that some serious matters would simply be too divisive forlocal communities to handle as, ‘. irresolvable conflicts and dilemmas couldresult from dealing with these locally.158 It was felt by many that such matterswould be, best handled by non-Cree(even non-natives) because it could notbe thought that anyone was taking sides on the matter if they werestrangers.159 The Saskatchewan Study noted this problem, but reported thatthere was no consensus as to whether an Indian Justice of the Peace shouldpreside in the reserve of residence.16°The Australian Law reform Commission noted that ‘. . . there are a largenumber of cases which because of kinship difficulties, the Aboriginal justices donot wish to hear and which they are quite happy for a non-Aboriginal magistrateon circuit to hear.”161 Brakel’s blistering indictment of American tribal justicenoted that, “political influence is perceived to be so pervasive and systematic asto constitute the norm [and that] . . . being a part of a closed society in whichfamily and clan affiliations exert a powerful influence, tribal judges are veryvulnerable to social-pressures.”162ABUSE OF POWERSchwartz refers to the potential for tyranny by the Aboriginal majority inpower as follows: “In a small community, it is fairly easy for one faction to takeover, to dominate all aspects of life, to favour its own and discriminate against157 ibid. , at 23.158 ibid. , at 22.159 Cree Report, supra, note 21 at 36.160 Saskatchewan Study, supra, note 50 at 20.161 The Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws,Report No. 31 (Canberra: Australian Government Publishing Services, 1986) (hereinafterAustralian Report) referred to in Jackson supra , note 82 at 233.162 Brakel, supra, note 92 at 95-96.137others.’163 Shkilnyk refers to, ‘a breeding ground for nepotism andpatronage,’164 where individuals, families and clans carve out “fiefdoms”assuring jobs, progress, and relative success to their own at the expense ofothers less well connected. These comments repeat the concerns of womenoutlined above, but they are not their concerns alone, although their voice,being the loudest, has attracted the most attention. The Assembly of FirstNations’ Circle on the Constitution, the status Indians’ version of theparliamentary joint committee, has repeatedly heard the theme that, ‘a structureshould be in place for native communities to seek redress when theirgovernments go bad [as].. . some reserve residents are fearful self-governmentmay leave them unprotected from corrupt leaders,’165 or, from what thesociologists refer to as, ‘an intensification of the inherent tendency of thepolitical elite and bureaucracy to enhance their monopolization of power andprestige.”166Perhaps nothing can eliminate such potential abuses of judicial orpolitical power, but the Charter provides, at least, a remedial process to seeksalutary correction of it. The Charter principles of fundamental justice providesome protection for the political “free thinkers and challengers’167 or just plainunpopular accused who might find themselves on the wrong side of somecommunity factionalism and prejudiced by governmental tyranny or judicialbias.163 Schwartz, supra, note 91 at 79. (This factor is related to the section 33 override power inchapter five.)164 Shkilnyk, supra, note 32 at 106.165 Jack Aubrey, Restigouche: One Band’s Experience of How Self-Government Works WhenYou Try It” The Vancouver Sun (18 February 1992) at A4.166 Gibbins and Ponting supra, note 42 at 190.167Wagamese, supra, note 139.138MEDIA1ON V. ADJUDICATIONThe Inquiry endorses, . . . the principle that each and every distinctAboriginal community be entitled to its own justice system,tm168 which meansprecisely what it says; each and every individual community may create its ownfully-functioning and self-contained system of justice. The Inquiry recommendsthat:Aboriginal communities be entitled to enact their owncriminal (and civil and family) laws and to have theselaws enforced by their own justice systems. If theywish they should also have the right to adopt anyfederal or provincial laws and to enforce that aswell.169However, because of the relatively small size of such communities, itrecommends, joint justice-management agreementst between Metiscommunities and Indian reserves which are side by side, even though theseunits will have, tmdifferent legal bases.tm170 Alternatively, it advocates a regionalmodel grouping a number of bands together where, ‘. . . the law that is followed,however, in all these situations is the law of each tribe.m17’Aboriginal self-governing units and their justice components will be verysmall indeed, even if regionalized into “supra” level governmentsencompassing two or more local governments. There are 633 bands172represented by the AFN. The average band population appears to be about168 Inquiiy, supra, note 2 at 315.169 Ibid. ,at323.170 Ibid. ,at 315.171 Ibid. , at 316.172 A Constitutional Primer, supra, note 40. This seems to be the accepted figure, although thenumber of 597 is also reported; see Jeffrey Simpson, “Broad, Bold and Breath-Taking, But WhatDoes It Mean?” The Globe and Mail (25 March 1992) at Al 1.139550.173 Only three percent are estimated to have a population in excess of2,000.174 Some studies argue the obvious fact that that this relatively very smallsize, ‘poses constraints on what they can accomplish.’175 The all-encompassing, expansive, even ‘breath-taking’176 scope of the Inquiryrecommendations prompts one to wonder whether even regional units mightnot have difficulty with the intricacies of sophisticated policy-making on thescale of whole justice systems and charter creation. However, this thesis is notconcerned with the capacity of such small units to govern themselves and enacttheir own possibly very distinct substantive and procedural criminal law. Nordoes this thesis address the practicality or impracticality of one Aboriginalcourt’s applying different Aboriginal laws and procedures, as apparentlyenvisaged by the Inquiry. This thesis accepts the position of the Inquiry thatsuch decisions and the timing of their implementation for each community,‘would be up to the Aboriginal people and their governments to make.’177However, assuming the requisite capacity to initiate and administer a totaljustice system, the positive mediation implications of localness must becontrasted to the negative implications for adjudication, which, as outlined inchapter two, is a distinctly different process.Van Dyke observes that what he calls the ‘Little Community’ is, ‘. . . sosmall that everybody in the community is either related to most others, or at leastknows everybody else (including one’s worst enemies) on a deeply personalbasis.”78 This is especially, and perhaps obviously, true of Aboriginal smallcommunities. York observes, for example, that: “beyond the walls of the white173 First Ministers Conference: The Rights of Aboriginal Peoples, Background Notes.(Ottawa,April 2-3, 1985) at 3.174 Ibid.175 Franks, supra, note 66 at 45.176 Simpson, supra, note 171.177 Inquiiy, supra, note 2 at 326.178 Edward W. Van Dyke, Policing the Little Community: The Personal Touch ( November 11982)at 4 [unpublished].140compounds, Shamattawa is a tightly knit community. Almost all the Cree areclosely or distantly related to each other.’179In addition to being small, such Aboriginal communities share a commonculture and language and emphasize intensely personal relationships whichnaturally tend to be informal.’80 The advantages of indigenized, personalized,informal localness as distinct from alien, impersonal, detached and centralizedadministration have been demonstrated in child welfare,’81 alcoholtreatment,182 education’83 and other matters, where it simply makes sense toutilize local people who can respond immediately and with relevant localknowledge to a problem.This is equally true of some, but, it is submitted, not all aspects of justice.Such a community may quite reasonably insist, for example, on local,personalized and often relatively informal policing, by agents who havepersonal involvement and interact with the whole way of life of thecommunity.’84This localness facilitates a high degree of social control throughpersonal, non-adversarial charisma, rather than formal enforcement.’85In sucha community, offences may be actually experienced, not just theoretically as inthe larger more impersonal society, as a personal affront to the community. Insuch circumstances, informal community censure in the form of gossip orridicule may be quite effective where both the aberrant behaviour and itssanctioning are likely to be highly visible and personally embarrassing.186179 York, supra, note 30 at 7.180 Van Dyke, supra, note 178 at 3-4.181 See, York, supra, note 30, chapter eight, “From Manitoba to Massachusetts: The LostGeneration.”182 See, York, ibid. , chapter seven, “Alkalai Lake: Resisting Alcohol.”183 See, York, ibid. , chapter two, “From Lytton to Sabaskong Bay: Fighting For the Schools.”184 Van Dyke, supra, note 178 at 9-13.185 Ibid. , at 13.1 See, Jackson, supra, note 17 at 84 and 90 for a discussion of the “Shame Feast.”141In a like manner, it is submitted, these positive characteristics oflocalness facilitate resort to the restorative, non-adversarial, community-basedmodel of justice which Jackson187 and others188 have shown is common toAboriginal justice systems and the contemporary Alternative Dispute ResolutionMovement. Jackson refers to a Law Reform Commission study on diversionwhich found that’. . . in a significantly large number of disputes the relationshipbetween the parties is one for which adjudication does not provide ananswer.’189 In many cases, especially ‘polycentric relationships,”90where thecriminal matter is perhaps just a symptom of a more complex ongoingrelationship, ‘. . . what the parties Want is a solution that will harmonize theirdifficulties, not necessarily a judgement that will crystalize their discord.’191 Insuch cases the parties and the community involved may well be better servedboth in the short and long run by a ‘reconciliation”92 model of justice whichcan emphasize mediation, restitution and harmonization, all of which are likelyto benefit from interested local knowledge and input.It is precisely these principles,of course, that the Inquiry characterizes asthe foundation of an Aboriginal justice system:The underlying philosophy in Aboriginal societies indealing with crime was the resolution of disputes, thehealing of wounds and the restoration of socialharmony . . . Atonement and restoration of harmonywere the goals - not punishment.193187 See, Jackson, Ibid. , Part III: “The Development of Alternative Dispute Resolution in theCanadian Cnminal Justice System.”188 MichaeL Coyle “Traditional Indian Justice in Ontario: A Role For the Present?” (1986) 24:3Osgoode Hall L. J. 605 at 628.189 Jackson, supra, note 17, at 36 (Referring to Law Reform Commission of Canada, Studies onDiversion (1975).190Jackson, ibid, at 37.191 Ibid. , at 36.192 Ibid. , at 44.193 Inquiiy, supra, note 2 at 27.142Chapter two suggests that the successful use of such an approach will belimited practically and substantially to disputes which are in some wayreconcilable and parties who are likewise disposed. There must be a basicdesire to further some sort of mutual interest. The general communitarianfeatures of localness will go a long way to fostering, nurturing and exploitingsuch a commitment, but the essential precondition is the consent of the partiesbased on the mutuality of interest in the outcome of the process, the likelyexistence of which is somewhat diminished by the fault lines in the harmonyethos.The Saskatchewan Study which referred to conciliation and mediationas, ‘in general,’ the ‘preferred method of resolving disputes,’194 recognizedthat, ‘court is not a solution to all problems,’195 and that mediation andreconciliation can play a very significant and effective role in criminal matters.However, this role is one which is supplementary or complementary to theadjudication process. Such programs may be ‘pre-charge” or “pre-trial” toremove some offenders from the court process, but conditionally, in the sensethat the prosecution is deferred pending successful completion of the program.Other programs may be ‘post-trial’ where the goal is to provide alternatives tosentencing.196 However, the implication is that the conventional adjudication,adversarial system is always available if compliance with the ‘essentialprecondition’ of consent or, ‘voluntary agreement to participation’197 is notforthcoming.The negative features of localness could also interfere with the mediationprocess as, ‘community and/or family pressures could affect the outcome ofmediation or other alternate dispute resolution processes.”198 However, theconcern for the individual involved in such a process is not as great as he or194 Saskatchewan Study, supra, note 50 at 33.195 Ibid. , at 32.196b1d.,at3O-31.197 Ibid., at 31.198 La Prairie, supra, note 48 at 22.143she is such an active and controlling participant in seeking a mutual resolution.There is not the same concern about a mediator using local uknowledgex or,wtaking sides on the matterN when the sides are, at least to some minimal extent,facing in the same general direction.However, in the adjudication context, where culpability is in dispute,concerns about the impartiality of the court and the tyranny of the community inwhich it functions, focus attention on the vulnerability of the individual, whocould be anyone and everyone. It is in this context that the relative proceduralinformality permitted in the mediation context must be constrained if theinterests of the individual are to be protected. The Inquiry description of apreferred procedure where anyone may, volunteer an opinion or make acomment and where, everyone is free to contribute informationN200 mayadvance the mutual interests of the parties to mediation, but could be distinctlyunfair to the interests of an accused who disputes the claim of the other side,which is, in essence, the community. An open invitation to all members of themajority to offer opinion and comment in a hotly disputed and possiblyemotionally charged matter is tailor-made to further the interest of the possiblytyrannical majority against the procedurally unprotected accused minority.The Inquiry, with respect, fails to distinguish adequately the very realdifferences between mediation and adjudication and to sufficiently appreciatethe potential dangers to individual freedom engendered by applying theprocedural techniques of the one to the other. These dangers to the individualare discussed more fully in chapter five.It is submitted further that the Inquiry simply goes too far in insisting thatthe Aboriginal value and justice system, Iarequireshl2ol reconciliation andrestitution as part of the harmony, mediation ethos.Pat Conroy captures the essentially non-compensable nature of somecrime, especially violence, in these poignant words of a fictional victim of rape:199 Inquity, supra, note 2 at 36.200 Ibid.201 Ibid. , at 37.144In our sleep he would rise from the dust of my terrorand rape me a thousand times again. In immortalgrandeur he would reassemble his torn body andburst into my room like evil khans, marauders, andconquerors, and I again, would smell his breath inmine and feel my clothes ripped away from my body.Rape is a crime against sleep and memory; it’safterimage imprints itself like an irreversible negativefrom the camera obscura of dreams. There is aterrible constancy that accompanies a wound to thespirit. Though my body would heal, my soul hadsustained a damage beyond compensation.?02Mediation and reconciliation will not always be possible or even desired.Aboriginal women victims are suggesting that, for some offences and offenders,they seek immediate protection from harm through denial of bail and increasedincarceration. In some cases, the crystalization of discord is beyond thepotential for or interest in harmonization. In other cases there may be noprevious or ongoing relationship. Perhaps most importantly, in some cases thealleged miscreant may simply wish to assert an innocence which is inherentlyincompatible with, and irreducible by, mediated compromise. The potential tosee the offender as a means to a communitarian end, possibly through theimposition of true penal consequences, arises in the adjudication, not themediation context. In such cases, the otherwise very positive aspects oflocalness can become rather more negative, especially in the absence of thetempering effects of procedural formality and Charter values of fundamentaljustice.Chapter two argued that an unknowable portion of “major” and “minorTMAboriginal crime was likely not amenable to pure restorative justice. Thisinherent potential need for adjudication processes is confirmed by the fault linesrevealed in the harmony ethos and justifies concerns about the adjudicationhiatus in the Inquiry position. The next chapter examines a similar historicaladjudication hiatus. which challenges the cultural survival rationale for theparamountcy of collective rights in contemporary Aboriginal criminal justice.This final chapter argues for the incorporation of the Charter values of202 Pat Conroy, The Prince of Tides (Boston, Houghton Mifflin, 1986) at 483.145fundamental justice into an otherwise autonomous Aboriginal system to meetthe very real adjudication demands of actually existing Indianism. It is argued,adopting the words of the Supreme Court of Canada in Genereux, that this isnecessary:• not only to the capacity to do justice in a particularcase but also to individual and public confidence inthe administration of justice.203203 Genereux, supra , note 111 at 25.146CHAPTER 5HISTORICAL ADJUDICATION HIATUS: CHARTER VALUES AND CULTURALSURVIVALINTRODUCTIONThe Report of the Aboriginal Justice Inquiry of Manitoba 1 does notindicate how autonomous Aboriginal justice would differ from conventionaljustice in dealing with the considerable adjudication demands of actuallyexisting Indianism that do not readily conform to its harmony-reconciliation,communitarian mould. It rejects the Canadian Charter of Rights and Freedoms 2and recommends an Aboriginal charter in its stead. However, it is silent aboutthe contents of this proposed document, except to assert that collective rightswould take precedence over individual rights, in conformity with what the Inquiryapparently believes is a sufficiently homogeneous communitarian ethic. Thefault lines outlined in chapter four challenge this assumption. However,conceding the validity of such a community-constituting understanding aboutcommunitarian justice, chapter three developed the theme that the ‘onlydefensible rationale’3for the paramountcy of a collective right over the possiblyconflicting claims of individualism rested on a base of ‘cultural survival.’4Asoutlined in chapter three, this justification was expressed by Mercredi to theInquiry and adopted by it as ‘the unarticulated premise underlying the concernsof other Aboriginal presenters ‘5 on Aboriginal justice. This justification for1 Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People(Winnipeg Queen’s Printer, August 12, 1991) (Commissioners: Associate Chief Judge A.CHamilton and Associate Chief Judge C.M.Sinclair) [hereinafter Inquiry].2 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, beingSchedule B of the Canada Act 1982 (U.K.) 1982, c. 11 [hereinafter Charter].3 Chapter three, supra, at 91.See generally, chapter three, supra.5 Inquiry, supra, note 1 at 256.147separate Aboriginal justice, centered on paramount communitarian values, isrepeated here to introduce a closer analysis of the nature of the suggested linkbetween Aboriginal justice and cultural survival: “Unless we affirm our rightsand rebuild our social and political institutions now, we are fearful that withindecades, assimilation will be complete and our civilization will disappear.”6This chapter confirms that the mediation cultural link to the past is strong, butargues that the adjudication link, needed by actually existing Indianism andignored by the Inquiry, is weak or missing. This historical adjudication hiatusimplies that a contemporary Aboriginal adjudication process will have to besubstantially invented, rather than merely rebuilt or revived. It is argued that theCharter provides a seasoned procedural framework of fairness to the individualthat can meaningfully stiffen this relatively weak adjudication culturalfoundation, without threatening the legitimate goals of cultural distinctivenessfurthered by an otherwise quite autonomous Aboriginal justice system.The theme of cultural survival is encountered in a variety of forms whichencompass the pressing need for a minority group enmeshed in an“asymmetrical power relationship”7to protect and assert its “cultural identity,”8“group identity,”9 “cultural essence,”1°“core of lndianness,”’1 or, “right toculture”12 by preserving values or interests or traditions, “with which my identityis bound,”’3or, which relate to the, 9ntegrity of the group,”’4“the right to exist as6 Ibid.June Starr and Jane F Collier, “Introduction: Dialogues in Legal Anthropology”, in J. Starr and J.Collier, eds., History and Power in the Study of Law (Ithaca, Cornell University Press, 1 989)at 1.8 Reg.v Qakes (1986)24C.C. C. (3d)321 (S.C. C.)at346.Ibid.10 Chapter three, supra at 100.Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) 36 McGill L.J. 308 at369-371.12 David C Hawkes, Aboriginal Self-Government (Kingston, Queens University 1986) at 2.13 Darlene Johnston, “Native Rights as Collective Rights: A Question of Group Self-Preservation”(1989)2 Can. J. of Law and Jurs.19 at 21.14 Chapter three, supra, at 91.148distinct peoples,’15 or, are ‘central to their individual and collective self-definition.’16 This revitalization or renaissance of Aboriginal distinctiveness isbased on connections to the past, some more tenuous than others, which areconsidered to have survived in varying degrees the ravages of the colonizationprocess and the long period of apparent, but sometimes misleading,irrelevance, outlined in chapter one. With the imminence of self-government,there can be little doubt that the beginning of ‘the reversal of that process’17 is,indeed, at hand.There also can be no doubt that legal systems are cultural systems andand can be ‘appropriate vehicles for asserting, creating and contesting nationalidentities.’18 The specific focus here, however, must be on one very particularaspect of a legal system, the criminal justice component, and the extent to whichit relates to the theme of continuing Aboriginal cultural distinctiveness. One mustbe careful not to seek a static remnant of the past, unchanged in the present,which would be tantamount to equating ‘survival’ and ‘preservation’ withsomething’. . . more suited to fossils or laboratory specimens than to people.’19It is understood that traditions can evolve and adapt to the demands of thepresent and that, as the inquiry states, ‘ . . . for Aboriginal people, their faith inthe ability of their cultural institutions and their leaders to undertake the revivalof ancient principles for modern institutions is quite high.’2° However, it issubmitted that one may legitimately ask: what are the Aboriginal justicetraditions that are ‘to evolve’; what are the institutions that Mercredi intends to‘rebuild’; what are the ancient principles that are to be ‘revived,’ which,specifically, can meet the adjudication needs of a comprehensive criminaljustice system, suitable to the demands of actually existing Indianism as15 Rudy Platiel, “Native Rights Debated at UNTM The Globe and Mail (20 February 1992) A4.16 Patrick Macklem, “First Nations Self-Government and the Borders of the Canadian LegalImagination”, [19911 36 McGill L. J. 383 at 451.17 Michael Jackson, “Locking Up Natives in Canada” (1989)23:2 U.B.C. L. Rev. 215 at 218.18 Starr and Collier, supra, note 7 at 11.19“Defining Quebec’s Distinctiveness” The Globe and Mail (6 February 1992) at Al 6.20 Inquiry’, supra, note 1 at 258.149outlined in this thesis? This particular strand of the tradition is not readilydiscernible in the relative absence of research data; nevertheless, . . . there is awidespread and pervasive belief among aboriginal groups that if customaryways of dispute settlement are uncovered and employed, these will be moreuseful and relevant than contemporary justice responses.TM21 It is the position ofthis thesis that this belief is only partly justified. The adjudication hiatusapparent in the Inquiry’s harmony ethos of justice appears to be a reflection ofa similar historical void. This historical adjudication hiatus weakens the culturalfoundation of a modern Aboriginal justice system and thus, the validity ofcultural survival as a rationale for the paramountcy of collective rights in thatsystem. This cultural weakness increases the need and justification for Charterreinforcement.HIATUSTMENDS AND “MEANS”Commentaries on historical Aboriginal justice commonly start, as doesthe Inquiry in its introduction to the Aboriginal harmony world view, with thesomewhat compendious, largely irrefutable, and, it is submitted, obviousassertion to the effect that: “Aboriginal peoples have always had governments,laws and some means of resolving disputes within their communities.”22“Law”is often defined by reference to the work of Hoebel, a pre-eminentanthropologist, who spent years studying American Indian ways and who wasseeking,”. . . the machinery relied on by the Comanches [which would be]significant for the student of jurisprudence and social control.”23 Hobel statedthat:21 Jean-Paul Brodeur, Carol La Prairie and Roger McDonnell, Justice for the Cree: Final Report(Quebec, Cree Regional Authority, 1991) at 4 [hereinafter Cree Report].22 Inquiry, supra, note 1 at 18.23 E. Adamson Hoebel , “Law Ways of the Comanche Indians’ in Paul Bohannon, ed. , Law andWarfare (New York, National History Press, 1967) 184 ati 87. (Hoebel also studied the Cheyenne.See, supra, note 32).150A social norm is legal if its neglect or infraction is metby the application, in threat or in fact, of the absolutecoercive force by a social unit possessing thesocially recognized privilege of so acting.24This approach was used by Coyle who, in a relatively modest attempt tostudy the justice ways of Indians in Ontario, concluded that, . . . in light ofHoebel’s definition of law, a definition which is frequently referred to by modernscholars studying traditional societies . . . traditional Indian societies in Ontario• . had rules. . . that could be considered law.TM25 Coyle goes further to itemizethe, . . . functions assigned to our modern criminal justice system [as] specificand general deterrence, public condemnation and punishment of offenders[and] mechanisms designed to reform offenders and restore harmony in thecommunity.26 He concludes that the traditional Aboriginal methods of socialcontrol, Nlawsn N, • collectively served every one of the functions assigned toour modern criminal justice system.TM27The Inquiry refers both to Coyle28 and Hoebel,29 and adopts a similar lineof analysis, adding the Gitksan and Wet’suet’en mechanisms of ostracism andshame to N, the definition of enforcement offered by the legal anthropologist,E. Adamson Hoebel,TM30 and concludes that, TMAboriginal enforcementmechanisms, although not codified in to-day’s sense, served the same purpose24 Ibid.25 MichaeLCoyle, “Traditional Indian Justice in Ontario: A Role For the Present?” (1986) 24Osgoode Hall L. J. 605 at 626-627. Coyle notes at p. 626 that, “three years of puzzlement” wentinto Hoebels work and “no such detailed investigation has as yet been done of traditional nativemethods of dispute resolution in Ontario.”26 Ibid. , at 627.27 Ibid.28 Inquiiy, supra, note 1 at 51.29 Ibid. , at 53.30 Ibid151in Manitoba’s pre-contact Aboriginal society as did the justice system of theEuropean societies of that time.’31There should be no question that Aboriginal societies had laws andwhatever enforcement mechanisms were necessary. LLewellyn and Hoebelquote High Forehead in The Cheyenne Way. ‘The Indian on the prairie, beforethere was the White Man to put him in the guardhouse, had to have somethingto keep him from going wrong.’32 The Law Reform Commission refers to theessential inevitability of ‘law’: ‘Laws are necessary to define unacceptable actsand protect people from the harm caused by such acts. Lawlessness is the seedof societal disintegration.’33The law, and criminal law in particular, is an instrument of ‘coerciveforce,’ ‘social control’ and ‘enforcement mechanisms’ as outlined by Hoebel,Coyle and the Inquiry respectively. However, such descriptions of the function ofcriminal law, while accurate, are insufficient and potentially misleading. Theyfail to distinguish adequately ends from appropriate and measured means.They fail to even signal the possibility of individual-group conflict inherent in the31 Ibid. , at 53. This thesis does not seek to quibble with the Inquity , or to exaggerate the relativemerits of ‘the justice system of the Europeon societies of that time.’ While an adjudicationprocess involving a ‘not guilty’ plea, evidence under oath and verdict by a unanimous jury was inplace at least by Tudor times; the accused was disadvantaged in not having the full right tocounsel until 1836, the facilities to compel the attendance of witnesses until 1867, or the‘dangerous privilege’ of testifying under oath until 1898. There were few , if any, rules ofevidence before the eighteenth century. See, J. H. Baker, An Introduction to English LegalHistoiy (2nd. ed.) (London, Butterworth, 1979) pp. 411-419. However, it is submitted that thecommon law adjudication tradition and respect for the individual is well documented and hasevolved significantly to the present. This thesis does not attempt to deal with the complex issue ofextinguishment, however, the working assumption is that, whether or not any Aboriginal right tojustice has been legally extinguished according to the justificatory standards of Reg. v. Sparrow,(1990) 56 C. C. C. (3d) 263, the conventional criminal justice system has, in fact, rightly or wrongly,substantially displaced any conflicting Aboriginal justice processes, at least since Confederationand the treaties, and probably for a significantly longer period. The adjudication hiatus isnonetheless real, even if the result of the premature smothering of the evolution of Aboriginaljustice. See generally: Christie Jefferson, Conquest by Law: A Betrayal of Justice in Canada(Burnaby, Northern Justice Society, Simon Fraser University, 1988) [unpublished] and see, JohnWhyte, ‘Indian Self-Government: A Legal Analysis’, in.Leroy Little Bear, Menno Boldt and J.Anthony Long, Pathways to Self-Determination: Canadian Indians and the Canadian State,(Toronto, University of Toronto Press, 1984) 101 at 106-107.32 K.N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law inPrimitive Jurisprudence (University of Oklahoma Press, 1941) at 2.Law Reform Commission of Canada, Report: Our Criminal Procedure (Ottawa, InformationCanada, 1987) at 12.152imposition, as distinct from the mediation, of settlement of a dispute. Thecriminal law “forces” or “controls” through the medium of a living, breathingoffender, a human factor which should impose”. . . limitations upon the use ofthe law, moral and practical, as a means of social control.”34 Kadish andPaulsen provide, it is submitted, a more comprehensive and accurate analysisof the function of criminal law which is properly and necessarily sensitive to thiscrucial distinction between ends and means. It is one which highlights thepresence of the individual offender in the process and thus raises questionsrelevant to that individual’s rights, if any, in the process:The ends it serves involve social and human valuesof the highest order comprehensible by personswithout legal sophistication. Its means, entailing theimposition of brute force upon the lives of individualsare potentially the most destructive and abusive to befound within the legal system. . . one of its underlyingthemes is the great issue of the reconciliation ofauthority and the individual. . .A more complete description of “the functions assigned to our moderncriminal justice system” would include how this underlying theme of theinevitable conflict between the individual and authority is addressed. Otherrepresentative analyses of the function of criminal law do not ignore this “greatissue”:The Report of the Canadian Committee on Corrections affirms, likeHoebel, Coyle, and the Inquiry, the coercive purpose of the criminal law toprotect society at large:The basic purpose of the criminal justice system is toprotect all members of society, including the offenderhimself, from seriously harmful and dangerousconduct. 36Sanford Kadish and Monrad Paulsen Criminal Law and its Processes: Cases and Materials(Boston, Little Brown & Co., 1962) preface.Ibid.36 Report of the Canadian Committee on Corrections: Toward Unity: Criminal Justice andCorrections (Ottawa, Information Canada, 1969) (Chair, R. Ouimet) at 11 (hereinafter OuimetReport).153However the Oulmet Report immediately goes on to address the balancebetween the collective and the individual interest:The basic purposes of the criminal law should becarried out with no more interference with thefreedom of individuals than is necessary.37The Quimet Report then articulates the ultimate individual interest in thecriminal law context, one never mentioned by the Inquiry, which it deems to beselfevidentN:Recognition of the innocent must be assured byproper protection at all stages of the criminalprocess.38A federal policy statement on the function of criminal law39 approximatesHoebel’s definition in stating that, “The criminal law is necessary for protectionof the public and the establishment and maintenance of law and order,” butadds that, . . the criminal law potentially involves many of the most seriousforms of interference by the state with individual rights and freedoms [andtherefore] . . . The purpose of the criminal law should be achieved throughmeans consonant with the rights set forth in the Charter. . . .“Ibid.Ibid.,at12.sGovernment of Canada, The CriminalLaw in Canadian Society (Ottawa, Supply and ServicesCanada, 1982) at 4.154FAIRNESS - THE INDIVIDUALCoyle refers to the Law Reform Commission of Canada4°as the sourceof the ‘functions assigned to our criminal law,’ but the same Commission in alater report, which ‘attempts to explain and rationalize’41 its work in the area ofcriminal procedure, expands on the rationale for the liberal concern for theindividual developed theoretically in chapter three of this thesis. TheCommission emphasizes that in the ‘hierarchy’ of principles of criminal justice’.fairness [is to] be regarded as primus inter pares’42 This principle of fairnessrecognizes that, ‘Canadian procedural law has as its principal objective andbasic orientation the construction of a just method for the disposition of adispute . . . and that, ‘. . . ‘bringing alleged offenders to justice’ involves aprocess for fairly determining their guilt or innocence.’44 The Commissionsuggests that it is part of the “. . . wisdom of the Canadian system of criminalprocedure that it takes into account . . . protection against the risk of convictinginnocent persons.’45 It reminds us that, ‘. . . the common law is haunted by theghost of the innocent man convicted”46 and that this traditional concern for theindividual is manifested in the Charter, which confirms the primacy of fairness:Criminal procedure undeniably inclines toward theprotection of rights and liberties. The presumption ofinnocence, the Crown’s burden of proof in a criminaltrial, the right to silence, and the right to make fullanswer and defence all bear testimony to this fact.They are indicia of what we have elsewhere referred40 Law Reform Commission of Canada, Report: Our Criminal Law (Ottawa, Information Canada,1976)41 Law Reform Commission, supra, note 33 at 2.42 Ibid. , at 28.Ibid, , at5.Ibiá at 9.Ibid.Ibid. , at 11.155to as the ‘primacy of justice.’ If there is any dispute asto the veracity of this assertion the introduction of theCharter stands as an overwhelming rejoinder. Thelegal rights provisions of the Charter, in particular,speak directly to the subject of criminal procedure.47The harmony ethos emphasized so strongly by the Inquiry restscomfortably and securely on a sound cultural foundation and should inspireconfidence in Aboriginal justice to the extent that a reconciliation-mediationresponse is indicated. When, not if, an adjudication response is required, theconventional system is in place with its time-honoured “fairness” answer to the“great issue.” If this is to be rejected as “inappropriate” or “alien,”48 traditionalAboriginal justice must generate a considered adjudication alternative if thisconfidence is to be maintained.MEDIATION HERITAGE - ADJUDICATION IMPASSECoyle reminds one that “. . . in considering traditional Indian mechanismsof social control, it is necessary to rid oneself of non-Indian presumptions abouthow authority is normally exercised in society.”49This is largely because in mostAboriginal societies “. . . the people ruled collectively, exercising authority asone body with undivided power, performing all functions of government.”50Themechanism used is generally described as “direct participatory democracy andrule by consensus.”51 Such societies, without “state-coercive apparatus,”52 aresometimes referred to as “Aristotelian” implying, “a natural non-violent‘ Ibid. , at 28.48 lnquiiy, supra, note 1 at 37.Coyle, supra, note 25 at 614.50 Menno Boldt and J. Anthony Long, “Tribal Traditions and European-Western PoliticalIdeologies: The Dilemma of Canada’s Native Indians”, in Menno Botdt and J. Anthony Long (inassociation with Leroy Little Bear) eds, The Quest for Justice: Aboriginal. Peoples and AboriginalRights (Toronto, University of Toronto Press, 1984) 333 at 337.51 Ibid. * at 338.52 Moshe Berent, “Collective Rights and the Ancient Community” (1991) 4 Can. J. Law &Jurs.387 at 392.156harmonious society, ruled by consent rather than by force [where] . . . theabsence of a State as a distinct organ responsible for the public realm meantthat its burden fell directly upon the community and the citizens.’53 Suchsocieties will naturally consolidate a strong • . . ‘public sentiment’ which turnsinto an effective tool for preserving law and order [which is complementary tothe fact that it is a] small ‘face to face’ community or what is sometimes called a‘shame community’.’54Such communities were’. . . highly dependent upon thecorrect behaviour of each of its membersTM55 and, in the past, may not have hadmuch necessity to deal with the exceptional, dissenting or individualisticbehaviour increasingly found in contemporary Aboriginal communities. Indeed,Coyle notes that the Iroquois, who otherwise’.. . became renowned. . . for thesophistication of their political life,’56 did not have an elaborate penal code, inpart, because ‘. . . crimes and offences were so infrequent under their socialsystem.’57 In any event , the maintenance of law and order’. . . were part of thegeneral structure of inter-personal and inter-group relations’58 and not, asCoyle puts it, ‘ . . . the domain of an institutional hierarchy of full-timebureaucrats.’59Nevertheless, Coyle quite properly concludes that the Iroquois, Objibwaand Cree did have a ‘. . . sophisticated array of mechanisms to maintainorder.’6° He describes many examples which illustrate the value andeffectiveness of clan participation in the Iroquois process:’. . . conciliation effortsby clan councils, the obligation of each clan to atone for wrongs committed byIbid. , at 393.Ibid. , at 394. and see Jackson, supra, note 125 at 84 and 90.Ibid.56 Coyle, supra, note 25 at 611.Ibid. ,at 616.58 C.E.S. Franks, ed., Aboriginal Peoples and Constitutional Reform: Background Paper 12,(Institute of Intergovernmental Relations, Kingston, 1987) at 13.Coyle, supra, note 25 at 615.60 Ibid. , at 624.157its members and corresponding responsibility of individual Iroquois to theirclans for their conduct.’61 More generally, these mechanisms included,‘mediation and negotiations by elders, community members or. . . clan leadersaimed at resolving particularly dangerous private disputes and reconcilingoffenders with the victims’; [the] use of ridicule or ostracism by the community atlarge to shame offenders’; [the] payment of compensation by offenders (or theirclans) to their victims or their victim’s kin, even in cases as serious as murder;[and] in the case of wrongs that posed a grave threat to the communitycoercion or execution.’62Perhaps the most important factor underlying the justice machinery insuch close communitarian societies, an aspect of the ‘localness’ outlined inchapter four, was the desire ‘to gain and preserve the esteem of the comm unityin which he or she lived.’63 Nevertheless, important issues of fact andresponsibility must have arisen occasionaNy, but Coyle does not describe anyadjudication process to deal with an assertion of innocence based either ongenuine mistake, or, plain contrariness in the interest of selfish survival. Such aquintessentially individualistic attitude seems to have been statistically rare.Hoebel found that, ‘denial of guilt by an accused . . . was so uncommon thatthere are not cases enough to draw sound conclusions.’64Jefferson adds that,in general, ‘complaints were simply not acted upon unless the party was clearlyguilty.’65 Additionally, of course, the primary emphasis was on reconciliation,not punishment, which might lessen the motivation to deny an allegation; boththen, and where appropriate, now. Even in the case of murder, appeasement ofthe victim’s family by sufficient presents “. . . forever obliterated and wiped outthe memory of the transaction [and therefore] . . . the question of guilt orinnocence of the accused was generally an easy matter to determine, when the61 Ibid. , at 620.62 Ibid. at 625.Ibid.64 Hoebel, supra, note 23 at 193.65 Jefferson, supra, note 31 at 22.158consequences of guilt were open to condonation.’66The motivation to reconcilethrough confession and compensation must have been powerfully buttressedby the fact that failure to do so would likely lead to ‘private retaliation’ or‘revenge’ by the bereaved kin who, ‘.. . either took upon themselves jointly theobligation of taking what they deemed a just retribution, or appointed anavenger, who resolved never to rest until life had answered for life.’67Hoebel indicates that the essence of Aboriginal justice procedure was‘bargaining,’68 backed up in Comanche law, ‘as in all all law,’69 by resort toforce, however, the ‘social unit possessing the socially recognized privilege ofso acting,’7°was not the government, but the parties involved.71 The aggrievedparty might confront the offender himself, “stating the offence and the extent ofdamages which would satisfy him,’72 or, he might send others to prosecute onhis behalf, thus ‘minimizing the chance of violent outbreak.’73 Jeffersondescribes a process among the Huron where the victim’s family would indicate‘the quantity of gifts required to quench their grief and cries for vengeance bythe number of sticks presented . . .‘ The details of the process could varyconsiderably, but Hoebel stresses that, ‘ . . . the crux of the procedure wasbargaining. There was no question of evidence.’75 In virtually all cases, itappears that: ‘. . . the bargaining was begun with guilt accepted by both parties.[and] there was no technique for obtaining evidence from the defendant. Nor66 Coyle, supra, note 25 at 619.67 Ibid.68 Hoebel, supra, note 23 at 191.69 Ibid. ,at 193. -70 Ibid. , at 187 and see, supra, note 24.71 Ibid. ,at 193.72 Ibid. , at 190.Ibid.Jefferson, supra, note 31 at 64.sHoebel, supra, note 23 at 191.159was the defendant usually confronted with witnesses. The aggrieved had toascertain to his own satisfaction who the guilty party might be. After this hadbeen done the defendant could then be confronted.’76 The bargaining ornegotiation would involve ‘delicate’ factors each having ‘many shades andfacets [but] . . . only by agreement could the case be settled [and] . . . the soleway to agreement was bargain.’77Mandelbaum in his study, The Plains Cree, reports a similar resort to,‘gift giving [as] the socially accepted method of mollifying an aggrievedperson,’78 which was refined by the intercession sometimes of the chief,79 or, onother occasions by ‘Worthy Young Men,’8°who would facilitate settlement andavert disastrous blood feuds.It is difficult to know the extent to which these few studies of Aboriginaljustice are accurate, complete, or representative of other groups. The researchdata is sparse in any event.8’ Reliance on written records usually implies anon-Indian source which may be more or less accurate82 and, ‘. . . by the timethat western scholars began to study aboriginal cultures they had already beeninfluenced by the European invasion.’83 Nevertheless, it is submitted that ageneral picture emerges of a system that largely assumed guilt or culpability. Itconcentrated on the equitable and mutually satisfactory resolution of disputesthat were reconcilable because the offender almost always exhibited the76 Ibid. ,at 192.Ibid. ,at 193.78 David G. Mandelbaum, “The Plains Cre&, Anthropological Papers of the American Museum ofNatural History, Vol.xxxvii, Part II, 1940, 157 at 222.Ibid.80 Ibid. , at 230.81 Coyle, supra, note 25 at 613, and see; chapter four, supra, notes 6-10.82 Coyle, ibid.83 Franks, supra, note 58 at 14.160requisite ‘sense of responsibility and will to atone and restore.’84 The Aboriginaljustice heritage is one of negotiation leading to reconciliation and therestoration of community harmony. It appears that the consequence ofunwillingness or failure to settle was often forceful self-help. Since this was theaccepted norm, it no doubt met the definition of law provided by Hoebel and, asHobel points out, may approximate,’. . . a situation exactly comparable to thatobserved among nations which recognize certain practices of international law,but which reserve to themselves the sovereign right to resort to force if thingsdon’t suit them. Then in the words of Post Oak Jim, ‘Lots of trouble, lots ofpeople hurt’ ‘85 As viable as this system may have been, just as in internationalrelations, there must have been situations where negotiation was minimal oreven non-existent, depending on the ‘shades and facets’ of the situation.Jefferson describes one such case of an Ojibway women who,’.. . was knownto have murdered her baby and escaped to her brother’s abode. The husbandstalked her trail, and finding her seated beside her brother, declared the womanto be the murderer of their infant. The brother immediately turned and struckdown his sister, executing her on behalf of his family.’86 Such summary justicewithin the family might be accepted, however, in other situations, the revenge orretaliation killing by the kin of the victim might not be accepted by the kin of theoffender and the cycle of the feud may begin: ‘They strike back, and thesiphoning of blood is on.’87The historical sources generally are detailed about the Aboriginaldefinition of offences and the acceptable responses to them. Llewellyn andHoebel refer to law as having the’.. . peculiar job of cleaning up social messeswhen they have been made [and] a major portion of its essence [is] in the doingsomething about such a breach.’88 Accordingly, relatively much is known about84 See, chapter two, suprà.85 Hoebel, supra note 23 at 193.86 Jefferson, supra, note 31 at 45.87 Hoebel, supra, note 23 at 188.88 Llewellyn and Hoebel, supra, note 32 at 20.161how a particular transgression, a ‘. . . known and clear grievance or offence’89was treated. They suggest, however, that relatively little insight is provided, ‘.when one turns to that other problem-type which so baffles most primitivecultures: the dispute of fact,’9° the precise area ignored by the Inquiry. In hisdescription of the Comanche law ways, Hoebel stresses that, in addition tobeing rare, the system simply could not adequately address a plea of not guilty.He puts an important question, one the Inquiry fails to pose in the contemporarycontext, and answers it with precision:And what if guilt was denied? Usually it was not.When the defendant refused to own up, theprocedure apparently came to an imoasse.91(emphasis added)In their study of the Cheyenne, Llewellyn and Hoebel address thisproblem of adjudication to some degree and conclude that, ‘devices . . . wereinvented from occasion to occasion to deal with some doubtful point of fact - andthis although the culture showed no sign of working toward a single generalpattern for the purpose.’92 They point out that, ‘true dispute of fact, secrecy ofthe relevant truth, tries ingenuity.’93 An example of this ad hoc, ‘legalelasticity,’94ability to ascertain facts involved the discovery of an aborted foetusand the consequent disrobing of the young women to reveal recent lactationand, thus, the offender, who was banished.95 One is not told if the woman inquestion asserted any defence, however, in only four of the 53 cases describedby Hoebel was an allegation not acknowledged or actually disputed. Oneaccused remained mute to an allegation of boot-leg hunting and his guilt was89 Ibid. , at 30490 Ibid. at 306.91 Hoebel, supra ,note 23, at 192.92 LLewellyn and Hoebel, supra, note 32 at 306.Ibid.Ibid., at 119.Ibid., at 118-119.162taken to have been confirmed by his silence.96 In another similar case, theaccused protested his innocence; a search of his lodge found nothing and hewas thus exonerated.97Another was accused of stealing a bow string and hisdenial merely postponed a bloody beating by the owner until he was actuallyfound in possession some days later.98 In another case, two persons swore onthe ‘Holy Hat’ denying an allegation of adultery. The oaths were apparentlyfalse, but avoided further process as, 9egally, the oath cleared him.’99This very brief reference to traditional law ways suggests that historicalAboriginal justice was principally and appropriately concerned with the wisedisposition of fairly clear transgressions of the local customs or expectations.The prevailing motivation was to reconcile the parties and to promote theharmony of the community. The system involved legality in the sense ofconsistency and public acceptance. It was not burdened with legalisms or a‘wooden arbitrariness’100 and reveals a sensitive flexibility very different fromthe ‘tyrant’s arbitrariness of whimsy or temper.’101 At the same time, theadjudication process, such as it was, rested essentially on the ad hoc ingenuityof the moment and the particular wisdom of the parties. It revealsno pattern,formalism, principle or distinctive ‘world view’ which could be said tosignificantly contribute to Aboriginal cultural distinctiveness or identity. Indeed, itis submitted that it is the lack an adjudication heritage which stands out. If thecolonization process had not intervened, perhaps a distinctive adjudicationprocess may have evolved.102 However, to the extent that contemporaryAboriginal justice must provide an adjudication component, it largely will becreating anew, rather than perpetuating or refining the traditions of the past.96 Ibid., at 116-117.Ibid., at 117.98 Ibid., at 119.Ibid. ,at 151-152.100 Ibid. ,at 288.101 Ibid.102 See note 53 ,supra.163CHARTER VALUESThe quintessential expression of individualism and fairness in thecriminal law context is the opportunity to plead not guilty and take refuge in thepresumption of innocence placing the burden on the accuser to prove thecontrary. This adjudication process, if resorted to, necessarily precedes anyissue of disposition or reconciliation. The conventional system, centered on thevalues of the Charter, provides a relatively mature adjudication frameworkwhich the Inquiry, as outlined in chapter two, dismisses as ‘alien to theAboriginal value system.’103 It is submitted that Charter values which appearalien in the mediation context may become essential to fairness in theadjudication context overlooked by the Inquiry.‘NOT GUILTY’ - DISHONEST OR GUARANTOR OF FAIRNESSThe Inquiry assumes an unrealistic degree of offender selflessness indismissing the arguably salutary, but, in any event necessary, traditions of the‘not guilty’ plea, in overly broad strokes which betray, it is submitted, a degreeof naivety or excessive reformative zeal. As outlined in chapter two, the Inquirydismisses the relative ease with which the conventional system facilitates sucha plea as the ‘conventional response to an accusation.”04There is no doubtthat many in the conventional system ‘ . . . plead not guilty to a charge for whichthat person is, in fact responsible.’195However, it is submitted that the LawReform Commission exhibits a more appropriate understanding of, and thusrespect for, the hallmarks of adjudication which are the presumption ofinnocence and the burden of proof. These foundations of the right to make fullanswer and defence by pleading not guilty are characterized as, ‘ . . . theforemost example [of] . . . an institutionally entrenched skepticism, or perhaps103 Inqui,y, supra, note 1 at 37.104 Ibid. , at 22.105 Ibid.164better put, caution or wariness [which]. . . are foremost among the guarantors ofa just and regular process.’106ADVERSARIAL SYSTEM: TRUTH AND FAIRNESSThe Inquiry is equally dismissive of the adversarial system where,asoutlined in chapter two, opposing counsel control the process through cleverlychosen questions in the pursuit of a ‘truth’ which, according to the the Inquiry,the conventional system sees as ‘definite and definable.’107 The Inquiry prefersa more open system where ‘more of the truth can be determined’ by allowing‘any interested party to volunteer an opinion or make a comment.’108 However,the Law Reform Commission emphasizes that the rules of evidence whichcontrol and limit the introduction of evidence are in fact part of a process whichis a’. . . qualified search for the truth [where]. . . truth must find its place in thecontext of a larger concern to do justice. Prejudice, innuendo, opinion andspeculation are viewed by our system as poor handmaidens in the cause ofjustice . . . ‘Truth, like all other good things, may be loved unwisely - may bepursued too keenly - may cost too much’.’109 Llewellyn and Hoebel recall one ofthe potentially negative aspects of Aboriginal ‘localness” in the adjudicationcontext: ‘A close knit community comes readily to depend on generalknowledge and report.”11° The Law Reform Commission describes theprocedurally proscribed system as perhaps: ‘. . . the best method for securingthe truth. Even judges, who are individuals well-schooled in the task ofdisregarding extraneous matter, may fall victim to the overwhelming effects ofirrelevant and prejudicial material. Therefore the rules of evidence prohibit the106 Law Reform Commission, supra, note 33 at 7, (and at note 15 at 7).107 Inquiiy, supra, note 1 at 41.108 Ibid. , at 36.109 Law Reform Commission, supia, note 33 at 10, quoting from Pearsev. Pearse (1846) 1 De G.& Sm. 12, at 28-29.110 Llewellyn and Hoebel, supra, note 32 at 306.165introduction of such evidence ab initio.”11 The wide-open, informal approachadvocated by the Inquiiy places great reliance on the 9ngenuity of the moment’and minimizes the tensions of localness which chapter four indicates may beparticularly taut in the small Aboriginal community.BENEFIT ALLChapter four cautioned in the context of trusting governments that, ‘it is amistake to be complacent about any potential abuse of power.’112 The same istrue of a justice system untrammeled by the ‘technicalities’ of procedural rules,most of which are embodied in the Charter guarantee of the ‘principles offundamental justice.’113 The Inquiry implies that these formalities can becomemere ‘conventions’ which permit the guilty to plead not guilty and thus avoid‘justice’ on a charge ‘for which that person, in fact, is responsible.’114 Suchobservations are basically correct, but, it is submitted, betray a tendency to treat‘justice (or fairness). . . as the sole preserve of the accused person in thecriminal process.’115 Such criticism also recalls the observation about thetyranny of the majority in chapter three, based on Dworkin that,’. . . due processconcerns for the individual which permit the guilty to go free tend to be replacedby an emphasis on accuracy and efficiency in the process.”’6The Law Reform Commission emphasizes what should not have to beargued at length:Laws which protect accused persons protect societyas a whole. The law should never be indifferent to111 Law Reform Commission, note 33 at 10-11.112 See chapter four, supra, note 146.113 The Charter, supra, note 2, section7.114 Inquiry, supra, note 1 at 21-22.115 Law Reform Commission, supra, note 33 at 15.116 See chapter three, supra, note 104.166the safeguards which surround a person facing acriminal charge.117society is composed of the individuals within itand . . . the procedural laws which guaranteefairness to those charged with a crime are lawswhich guarantee fair treatment to us all.118It is not suggested that the Inquiry is indifferent to these values, but theadjudication hiatus in the Inquiry analysis makes their value to all members ofthe Aboriginal community less apparent.CULTURAL SURVIVALThe conventional system is far from perfect, but at least recognizes andtries to address the, Nunderlying theme of the conflict between the individual andauthorityTM119 by providing a principled adjudication process which is intended toassist the individual, who is everyone and anyone, in what might otherwise be amost unfair and potentially abusive confrontation. The Inquiry either ignores thisconfrontation or assumes a type of conflict which is reconcilable by mediation toachieve mutually sought objectives. It places great faith in the capacity ofrevitalized Aboriginal harmony concepts of justice to address contemporaryreality. However, it is submitted that:It is not enough to simply uncover and applycustomary law. Any justice alternatives whethercustomary or contemporary, must be more beneficialthan the existing system because their value lies inwhat they rather than where they came from orwhat they are called.12°117 Law Reform Commission, supra, note 33 at 6.118 Ibid. ,at 13.119 Kadish and Paulsen, supra, note 35.120 The Cree Report, supra, note 21 at 4.167If the Inquiry has a better way of dealing with the inevitable irreconcilableconflicts of actually existing Indianism, it has not made the principles andbenefits of the alternative process clear. Brakel argues that:The burden of persuasion for separatist ideas shouldfall on the proponents of separatism. In the case forseparate tribal courts, instead of advancing the usualpolitical and mystical arguments, proponents shouldshow that the courts have concrete operationaladvantages. 121Jackson argues that a distinctive Aboriginal system should be, “based ona realistic assessment of the strength and limitations of both their owninstitutions and those of the larger Canadian society.”(emphasis added)122 TheInquiry makes a persuasive case for a degree of separate Aboriginal justicewhich would preserve and promote the cultural survival of the harmony essenceand strength of that system. However, it is submitted that Charter values areessential to address the adjudication limitations apparent in that system. Theadoption, or even the judicial imposition, of Charter values would not, “mean theend of Indian culture, realistically defined.”123 A more realistic assessmentwould recognize that adjudicative justice is largely ancillary to its culturaldistinctiveness, but necessary to its contemporary viability.CONCLUSIONJackson asserts that, “it should not be beyond our legal imagination toreach . . . an accommodation . . . between collective and individual rights[which] . . . can reflect the accumulated wisdom of both aboriginal law and thecommon law.”124 In searching for different “pathways to justice” Jackson121 Samuel Brakel, American Indian Tribal Courts: The Costs of Separate Justice (American BarFoundation, 1978) at 99.122 Michael Jackson, “Locking Up Natives in Canada” (1989) 23: 2 U.B.C. L. Rev. 215 at 250(referring to the Gitksan and Wet’suet’en system)123 Brakel, supra, note 121 at 100.124 Jackson, supra, note 122 at 254-255.168stresses a, ‘.. . mutual respect for aboriginal law ways and the larger system’125and seeks,’. . . to find the points of intersection, those of conflict and also thosewhere mutual accommodation is possible.’126The Inquiry has strongly advocated an autonomous Aboriginal justicesystem premised on a communitarian cultural heritage of harmony, reconcilableconflict and mediation. It has virtually ignored a relative cultural void inaddressing dis-unity, irreconcilable conflict and adjudication. In stressing thewisdom of the Aboriginal law ways so appropriate for the negotiated settlementof reconcilable conflict, it has dismissed the wisdom of the conventional systemappropriate to the imposed settlement of irreconcilable conflict, which is a hardfact of actually existing Indianism.The Inquiry does not address the ‘great issue.’127 The Inquiry devotesonly four of its 789 pages to the related issues of the Charter, individual rightsand ‘due process.’128 The Inquiry emphasis is almost wholly on points of‘conflict’ between the two systems to the virtual exclusion of points of‘intersection,’ or ‘mutual accommodation.’ This thesis is a modest attempt toaddress the interface between two systems; one mature, but in need of change,the other, fledging and in need of assistance. These two systems will have toco-exist somehow. It is submitted that the Charter provides a ready and flexibleframework to join the Aboriginal community both to the larger white society andto the the diaspora by principled standards of justice. These fundamental indiciaof fairness recognized by all civilized self-governing units, constitute nosignificant threat to the cultural survival of the Aboriginal mediation justiceheritage, while buttressing its inherent adjudication frailties.125 Michael Jackson, In Search of the Pathways to Justice: Alternative Dispute Resolution inAboriginal Communities, (Paper prepared for the Law Reform Commission of Canada, May 15,1991) at 77 [unpublished].126 Ibid. ,atll6.127 Kadish , supra note 35.128 Inquiiy, supra, note 1 (pages 333-336).169JUSTiFYING INQUIRY POSmON: SECTiONS 1.25 OR 33.Section 1Confirming the prophecy of Schwartz, the Inquiry proposal is a boldM andradical’ response to N• aboriginal demands for more self-government.129Ifthe conventional court is not pre-empted by Aboriginal resort to section 33, itwould likely judge the appropriateness of the collective paramountcy inherent inthis response by applying section 1 of the Charter, or the TMOakes test,13°whichhas been referred to in this way:Section 1 is the genetic code of the Charterguarantees. It is the blueprint for the maximum stresswhich the Constitution permits the ordinary orconventional law to place on a guaranteed right orfreedom. In the Oakes case, the Supreme Court ofCanada has provided the key to that code orblueprint 131The Oakes UkeyN to the inner sanctum of section 1 has three broad teeth:fobjective,Nl32 Hmeans 133 and Nproportionality.Nl34An autonomous Aboriginaljustice system would be justified under this analysis if the objective islegitimately pressing and substantial and the autonomous means utilized areproportional to the objective. This thesis is not intended to be a definitiveanalysis of the application of the Qakes test to the issue of Aboriginal justice. Itis submitted that the implementation of a justiciable inherent right to self-government will generate suitable concrete issues for such analysis in relatively129 Bryan Schwartz, “A Separate Aboriginal Justice System?” [1990] Man. L.J.77 at 90.130 Reg. v. Qakes (1986)24 C. C. C. (3d) 321 (S.C. C.).131 Badgeret. aL v. A-G Manitoba (1986)27 C. C. C. (3d) 158 (Q. B.) at 161.132Oakes, supra, note 130 at 348- 349.133 Ibid.134 Ibid.170short order. However, the, perhaps deceptively simple, essence of this test,which is transparently political,’35 is reasonableness:If I have any qualifications to make, it is that I prefer tothink in terms of a single test for section 1, but onethat is to be applied to vastly differing situations withthe flexibility and realism inherent in the word‘reasonable’ mandated by the Constitution.136The colonization process outlined in chapter one confirms the pressingand substantial objective of Aboriginal revitalization and cultural distinctiveness.The means of self-government, and autonomous justice as a componentthereof, are rationally connected to the general objective and, more specifically,to correcting the . . . symptomatic problems of over- incarceration [by] anddisaffection [with]”37 the conventional criminal justice system. Chapters threeand four confirm a ‘community-constituting understanding’138 about thisobjective, which supports the finding of a collective right to the necessarymeans to achieve that objective. The conventional court , however, would beconcerned that the fault lines in the harmony ethos outlined in chapter fourundermine such an understanding about the means to achieve the objective.This concern, coupled with the conventional system’s commitment to the‘unremitting protection of individual rights,”39 would generate skepticism abouta claim to the paramountcy of collective rights over individual rights asproportionate means to the attainment of the objective, It would be concernedthat the Inquiry’s dismissal of the “wisdomTM14° of conventional justicemechanisms outlined in chapter four and above betrays, if not “a strategy of135 Peter H Russell, Rainer Knopff and Ted Morton, Federalism and the Charter: LeadingConstitutional Decisions (Ottawa, Canton University Press, 1990) at 452.136 Andrews v. Law Society of British Columbia (1989)56 D. L. R. 1 at 41, (S. CC., LaForest J.).137 Inquiry note 1 at 2.138 Michael McDonald , “Should Communities Have Rights? Reflections on Liberal Individualism(1991) 4 Can. J. of Law & Jurs. 217 at 231.139 Hunter v. Sbutham Inc., [1984] 2 S. C. R. 145 at 155.140 Jackson, supra, note 124.171deliberate overstatement,”141 a disproportionate response to the inertia of thepast and the sometimes strident demands generated in the self-governmentevolution process outlined in chapter oneContextual InterpretationThe conventional court would be concerned that the Inquiry, in referringto the premises of the conventional system, substantially embodied in theCharter, as “alien “142 has failed to consider the inherent dynamic capacity ofthe Charter to promote a culturally appropriate interpretation of the rights itseeks to protect. Pentney argues that section 25 serves this function. In his view,section 25 acts as a “prism,” which is applied to modify the definition and scopeof the individual right to protect the threatened Aboriginal right , before any limitof the individual right is subjected to a section 1 analysis.143 The court might beattracted to this approach, however, it is submitted that a contextualinterpretation is mandated by Genereux, independent of the interpretiveprovision. The failure of the Inquiry to appreciate the potential significance ofthis approach is underlined by its uncritical endorsement of the proposition ofthe Assembly of Manitoba Chiefs that a major motivation for a “tailor-made”Aboriginal charter is that, “full compliance by Aboriginal justice systems of theCharter of Rights , would amount to nothing less than blackmail andhypocrisy.”144 It is submitted that this concern is exaggerated in light ofGenereux which posits only substantive, not necessarily formal, compliancewith the “essence”145 or the “heart “146 or the “core value”147 of rights which may141 Bryan Schwartz, . “A Separate Aboriginal Justice System?” [1990] Man. L.J.77 at 90.142 Inquiry, supra, note 1 at 37.143 William Pentney, The Aboriginal Rights Provisions in the Constitution Act, 1982 (LL.M.Thesis, University of Ottawa, 1987) at 155-156.144 Inquiry, supra , note 1 at 335.145 R. v. Genereux [1992] 5. C. J. No. 10 at 20 at 24.146 Ibid., 23.147 Ibid., 50.172have a N different content . in different institutional settings.148 It issubmitted that this is some indication of the capacity of the Charter to evolveand encompass new or different points of view. Any present understanding ofthe meaning of an individual right may be better viewed as Na pattern ratherthan a strait -jacket.149 Genereux supports the proposition that in resolving aclash between an individual right and a collective Aboriginal right to analternative system of justice, the individual right must be defined and refined inways appropriate to.the context of the alternative system. Irreconcilable conflictwill exist, if at all, only in the case of a limit on the contextually-tailored essenceof the right.150The contextual approach would also distinguish the processes ofmediation-reconciliation and adjudication-punishment. Since effectivereconciliation is largely premised on the consent or will of the parties, it isdifficult to see how the Charter would significantly interfere with theimplementation of those Aboriginal justice processes which are truly consistentwith the harmony ethos.The serious nature of at least a portion of Aboriginal crime and theincreasingly adversarial and punitive orientation of actually existing Indianism,indicate a need for adjudication processes and true penal consequences.N151 Itis in this context that significant judicial resistance to collective paramountcy canbe expected.Aboriginal self-government should permit the people most abused by theinertia of the past to implement many of the alternatives that the Cawsey Report148 ibid. ,33.149 ibid. , 18.150 The Law Reform Commission states that “communities may wish to safeguard rights andsecure fairness in different ways than our system.” See, Law Reform Commission of Canada,Report no. 34,Aboriginal Peoples and Criminal Justice (Ottawa, Information Canada, 1991) at 19.(3enereux would permit very different “ways1 so long as the essence of fairness is therebymaintained. See also, infra, note 183 for how different, military justice, for example, can be.151 Genereux, supra, note 145 at 20.173finds are stiII applicable.TM152 The proportionality arm of the Oakes test wouldreasonably require that these less intrusive alternate means to achieve theobjective should be exhausted or proven to be irrelevant before a greaterinterference with rights could be justified.153 Nevertheless, section 1 providesthat all rights are relative and any Aboriginal limit on individual rights, asdefined in context, theoretically will be justified if it is a reasonable one.Section 25If, as is quite possible, the limit on individual rights is not found to bejustifiable according to the reasonableness test of conventional justice, chapterthree outlines how section 25 would nevertheless permit an otherwiseunprecedented denial of individual rights in the constitutionally mandatedgreater interest of cultural survival. As indicated above, the mediation heritageof Aboriginal justice is not seriously threatened by the Charter. Section 25ensures that any TMrevivedM or TMrebuilt Aboriginal adjudication process, which isauthentically integral to the viability of culturally distinct Aboriginal justice, willnot be corrupted by conflicting individual rights. However, the historicaladjudication hiatus outlined in this chapter poses obstacles to successful resortto this section. It may be difficult to establish a persuasively rational connectionbetween adjudication justice processes and Aboriginal cultural survival.The possibility of opting out of the Aboriginal system may be r&evant to asection 25 analysis. This involves the somewhat awkward theory of “voluntaryexit” and will be considered only briefly here. This argument in favour ofcollective rights asserts that optional exit from the group minimizes concern forthe internal procedures of the group.154 It is no doubt technically true that thesecularly minded Indian may shed Indian status or leave the self-governing unitif the collective practices are considered seriously incompatible with personal152 Justice on Trial: Report of the Task Force on the Criminal Justice System and Its Impact on theIndian and Metis People of Alberta, March 1991, Vol. 1, Main Report at 1-5.153 In Edwards Books andArt Limited v. the Queen [1986]2S. C. R. 713, DicksonJ. includesanexamination of alternate means as a part of the proportionate means test.154 Jan Narvesson, ‘Collective Rights?” (1991) 4 Can. J. Law & Jurs.329 at 341.174views. However the utility of this technical option is questionable. One does notchange cultures without paying a price. It is submitted that Iris Young capturesthe poignancy of such a dilemma in stating that,’ . . . such changes in groupaffinity are experienced as a transformation in one’s identity.’155 TheAboriginal, of all people, given the history of dislocation outlined in chapter one,should not have to face such wrenching change yet again, if at all avoidable.It is submitted that a more practical form of ‘voluntary exit’ in the contextof a criminal matter is the concept of electing the mode of procedure or waiver ofcertain rights on a case by case basis.156 It must be recognized that such anelement of choice has the regrettable potential to undermine the authority of theAboriginal system and to lead to ‘forum shopping.’157 If Aboriginal justice is torealize its potential, this type of fragmentation should be avoided as much as ispractically possible. The argument for an element of jurisdictional choice wouldbe significantly undermined by adopting the conventional legal rights of theCharter as the unifying thread connecting the two systems, as outlined shortly. Itis the lack of consent or choice in a case like Thomas 158 that is most disturbing.A Section 25 analysis might reasonably include an assessment of the extentto which non-consensual participation in the group activity is essential to groupcultural survival. Even in traditional Aboriginal society, it was not uncommon toexercise the option to ‘vote with one’s feet’ if one dissented.159155 Iris Young , N Polity and Group Difference : A Critique of the Ideal of Universal Citizenship”, inFeminism and Political Theory , Cass R. Simstein , ed., (Chicago, University of Chicago Press,1990) 117 at 127.156 This possibility is raised by the Law Reform Commission, supra, note 150 at 21, apparently inthe context of the Aboriginal court’s jurisdiction being conditional “in part” on the “agreement ofthe accused.” The jurisdiction envisaged by the Inquiry, and addressed by this thesis, is in no wayconditional on the consent of the accused.157 Inquiry, supra, note 1 at 320.158 David Thomas v.Daniel Norris et. al(16 September 1991), Victoria 88/412 (B. C. S. C.).159 Joseph Pestieau, “Minority Rights: Caught Between Individual Rights and Peoples’ Rights”(1991) 4 Can. J. Law & Jurs. 361 at 370.175Section 33It is not clear at this time whether the inherent right to self-governmentwould include the same notwithstanding clause granted the federal andprovincial governments,160 but the Aboriginal leadership favours its inclusion asappropriate to an equal third order of government. Failure to successfully invokesection 1 or section 25 would, presumably, compel consideration of this section.The Supreme Court of Canada in 161 ‘ . made it clear that itwished to minimize judicial review of the use of the override.Nl62 Thus, therewould not likely be any significant legal impediment to the use of this power byan Aboriginal government. If not otherwise justifiable under section 1, thissection might be used to implement such relatively benign local exceptions asbanning alcohol or insisting on vouchers instead of cash for welfare,163authorizing arbitrary searches of vehicles, persons and aircraft entering areserve for alcohol or drugs, criminalizing gas sniffing, or, a variety of otherlimitations about which one can only speculate, which might seem attractive toan Aboriginal community. However, section 33 might also be used malignly tofurther the tyranny of the majority, which this thesis argues should be of specialconcern to Aboriginal communities. This concern is particularly apposite in thearea of criminal law where the attraction of treating the individual as a means toan end can be so seductive as suggested in the, albeit civil, case of Thomas.164It is the federal government that has substantial jurisdiction in this area, but it is160 Agreement to entrench this power was reported on May 12, 1992 , however this was deniedthe following day by Alberta. See Susan Delacourt, “Talks Shape Third Order of Government, TheGlobe and Mall (12 May 1992) at Al; and see Tom Barrett, “Self-Rule for Natives Unresolved”,The Vancouver Sun (13 May 1992) at Al. More recently, it is reported that that this overridepower will be included in the final agreement: The Globe and Mail (3 June 1992) at A22.161 Ford v. Quebec[1988]2S.C.R. 712.162 Russell, Knopff and Morton, supra, note 133 at 559, and see; Ford, ibid. , at 741.163 See, Geoffrey York, The Dispossessed: Life and Death in Native Canada (U.K., Lester andOrpen, 1989) at 176 and 181 for examples of these initiatives at Alkalai lake.164Supra, note 158. See chapter three where it is argued that the imposition of similar proceduresby Aboriginal government, or the state, would trigger section 25.176submitted that national political reality minimizes165 the likelihood of federalresort to section 33 to limit individual rights in the criminal law context. However,the risk of the abuse of this power is dangerously magnified in the smallAboriginal community where, to repeat Madison, the majority will is so mucheasier to manipulate and, thus, to impose:individual rights and freedoms are best protectedwithin larger, more diverse communities, where it ismore difficult to articulate a majority will and amultitude of conflicting and competing interestsfragment and immobilize the majority.166If Aboriginal government arguments for infringing individual rightslegitimately fail to meet the cultural survival test of section 25, then, the rhetoricof politics aside, the predictable debate generated by prospective resort tosection 33, logically, should focus on some other rationale. If an autonomousAboriginal justice system were in place, subject only to contextually interpretedCharter values, that potentially very constructive debate should have to makeclear, what the Inquiry, with respect, has failed to demonstrate - precisely howthe principles of fundamental justice frustrate the desire to “. . . run our ownaffairs, in our own communities, in our own way.”167 The harmony ethos shouldinvolve only the willing consensual participation of the populace. Such a debatemust highlight some collective imposition on the individual such as revealed inThomas.168 It will be politically incumbent on the proponents of such proceduresto demonstrate, not just assume, a community-constituting understanding aboutsuch potential violations of the principles of fundamental justice. It will not besufficient in this debate to invoke the shibboleth of cultural survival as thisrationale does not, at least in theory, require resort to section 33. If such a165 The imposition of the War Measures Act in Canada and the suspension of certain legal rightsin U.K. terrorist cases, perhaps indicate that the possibility of federal resort to such power cannotbe totally excluded.166 R. Gibbins and J. Ponting, “An Assessment of the Probable Impact of Aboriginal Self-Government in Canada” in Alan Cairns and Cynthia Williams, research coordinators, The Politics ofGender, Ethnicity and Language in Canada (University of Toronto Press, Toronto,1 984) 171 at218.167 Inquiry, supra, note 1 at 259168 Supra note 158.177consensus emerges from this debate, those who dissent from within, or fromwithout, can make an informed decision as to future relations with thatcommunity.SYNTHESISThe contextual interpretation approach suggested by Genereux169 is apossible example of what Gibson has referied to as ‘judicial statesmanship,’or,’. . . a willingness to abandon traditional solutions that have ceased to servelong.term needs.’17°The Supreme Court of the United States expands on thistheme of principled evolution to meet changing needs: ‘History makes clear thatconstitutional principles of equality, like constitutional principles of liberty,property, and due process, evolve over time; what once was a ‘natural’ and ‘selfevident’ ordering later comes to be seen as an artificial and invidious constrainton human potential and freedom.’171 The Supreme Court of Canada has takenan activist role in what the Inquiry refers to as a ‘remarkable shift in judicialattitudes”172 since the end of the period of judicial irrelevance marked byCalder,173 as outlined in chapter one, and continued by the cases of Guerin 174and Simon,175 which are’ . . . clearly inconsistent with the hostile judgements of169 supra, note 143.170 William F. Pentney, Interpreting the Charter: General Principles in GeraId.A Beaudoin and EdRatushny, eds, The Canadian Charter of Rights and Freedoms, 2nd. ed. (Toronto, Carswell,1989) at 27, quoting Professor D. Gibson, The Law of the Charter: General Principles (Toronto,Carswell, 1986) at 47.171 City of Cleburne, Texas v. Cleburne Living Center, 87 L. Ed. (2d) 313 (1985) (U.S.S.C.) at337.172 Inquiry, supra, note, 1 at 118.173 Calderv. Attorney-General of B. C. [1973[ S.C.R. 313.174 Guerin v. R. [1984] 2 S.C.R.335, (“which affirmed an Indian band’s title to reserve land on thebasis of the pre-contact Indian legal order.TM, Inquity, supra, note 1 at 118).175 R. v. Simon, [1985] 2 S.C.R. 387 (“treaties and statutes relating to Indians should be liberallyconstrued.. . in favour or the Indians, Inquiry, supra, note 1 at 118.)178the past.’176 This disposition to a judicial statesmanship that would ‘ . . . favourthose interpretations most likely to have beneficial impact’177 is furthered bySparrow which emphasizes that, in the area of constitutional interpretationinvolving Aboriginal issues: ‘Fairness to the Indians is a governingconsideration.’178It is much too early in the evolution of autonomous Aboriginal justice tojettison the accumulated wisdom of the conventional system or to conclude thatthe Charter is necessarily incompatible with the aims of an Aboriginal system.The conventional system must be given the opportunity to channel this shift injudicial attitudes toward supporting the Aboriginal aspiration to fashion a systemthat ‘bears the hallmarks of their own system’179 without denying theconsumers of that system that basic minimum of standards which theconventional system embodies in the Charter. At the same time, the Chartercould play a much needed role in uniting the Aboriginal community with thelarger white society; the landed Aboriginal community to the diaspora; and evencontiguous Aboriginal communities with ‘different legal bases,’ that might utilizea common regional court as envisaged by the Inquiry.180Pluralism is not necessarily inconsistent with minimum unifyingstandards. At the time of writing it is not clear where current decentralizingconstitutional negotiations will lead, however, the federal spending power hasfacilitated the creation of national programs in provincial jurisdictions such ashealth and welfare, by paying a substantial portion of the cost on condition that‘the provinces meet Ottawa’s standards of service.’181 The military justicesystem described in Genereux apparently continues as a very distinct, but176 lnqui,y, supra, note 1 at 118.177 Pentney, supra, note 170 at 27.178 Reg. v. Sparrow, (1990) 56G. C. C. (3d) 263 at 286.179 Jackson, supra, note 125 at 91.180 Inquiry, supra, note 1 at315-316, and see, chapter four under “localness.”181“A Constitutional Primer: How Powers are Divided” The Globe and Mall (8 January 1992) at A4.179viable one’82 despite the Supreme Court of Canada’s insistenceon a minimumCharter standard of impartiality. This distinctiveness was noted by L’HeureuxDube J: ‘The military is, after all, something of its own society within the greaterone. . . it entails a certain number of traditions, rules, and taboos which are notwithin the normal ken of outsiders.”83In a like manner, section 23 of the Charter permits a minority languagegroup to establish and control an independent school system, where numberswarrant,’. . . as the most effective guarantee to prevent assimilation,’184but theprovince can set ‘minimal standards’ of instruction in areas other than theminority language itself.’85 Home educational instruction and private schoolsmay be permitted for whatever purpose, but insistence on ‘provincial standardsof efficiency”86 are upheld as, N . it would be unreasonable to permit theappellant to ignore the province’s laws on a matter as important as theeducation of the young.”87The Social Charter proposed by the Ontario government, whatever itsother merits, highlights, the potential contribution of minimum uniform standardsas a ‘national adhesive”88 to balkanized local control of programs and policy.The proposal notes that, ‘people are not necessarily opposed to changes in thedistribution of powers [but]. . . favour the maintenance. . . of national principles182 Genereux, supra , note 145 at 25, Lamer J. notes that changes have been made to theregulations governing court martials which’. . . have gone a considerable way towards addressingthe concerns. . .‘ of the Court.183 Genereux, Ibid, at 58. (A General Court Martial consists of a five to nine member tribunal whichdetermines criminal guilt or innocence by majority vote and also determines the sentence. One ofthe members of the tribunal, the trier of fact, acts as president of the court and ensures that thetrial is conducted in an orderly and judicial manner. A “judge advocate” officiates much as a judgein determining questions of law or mixed law and fact, but that ruling may be disregarded by thetribunal ‘for weighty reasons.’ See pages 35-36 of the judgement.)184 Mahev. The Queen in Right of Alberta (1987)42 D.L.R. (4th) 514 at 537.185 Ibid. ,at 539.186 R. v. Jones [1 986] 2 S.C.R. 284 at 299.187 Ibid. ,at3Ol.188“A Constitutional Primer: The Social Charter” The Globe and Mail (13 January 1992) at A4.180in social programs.”8°Therefore the purpose of a social charter is ‘toguarantee that basic national values and principles are guaranteed”19°andto provide essential public services of reasonable quality to all Canadians.’191The basic utility, if nothing else, of minimum uniform standards of justiceto the Aboriginal community itself, is raised by the imminent prospect of casinoson the reserves as outlined in chapter two, as a, ‘solution to. . . the revival of theIndian communities across Canada.’192 This revival will be seriouslycompromised if people who ‘live, pass through or do business in an Aboriginalcommunity’193 have to check their Charter rights at the door before their cash isput on the table. If this is to be the case, these people may want to know inadvance whether the ‘voluntary exit’ door is to be left open or slammed shutbehind them in the case of irreconcilable dispute.In recognizing the need for pluralism, the goal should be to integraterather than further separate two systems and peoples which, it is submitted,share a greater interest in and need for Charter values than the Inquiryemphasis on the Aboriginal communitarian world view might imply. It issubmitted that the Aboriginal person is more properly seen as a synthesis of twocultures, which only.a sensitive and gradual mixing of the strengths of bothjustice systems will effectively accommodate.This duality is suggested but not quite accurately captured in the phrases‘Canadian Indian’ or ‘citizen plus’194 each of which, perhaps unwittingly, placesthe dominant society foremost. Actually existing Indianism can be seen, in part,as the product of the ‘civilizing’, acculturizing, assimilationist experience, thatintended, and to some degree effected, a displacement of what was considered189 Ibid., Official Text.190 Ibid.191 A Constitutional Primer, supra, note 180.192 Terrence Corcoran, “Indian Casinos: One Way to Renewal’, The Globe and Mall (21 May1992) at B2.193 Inquiry, supra, note 1 at 320.194 H. Hawthorn, A Survey of the Contemporary Indians of Canada, Vol. 1 (1966) at 6.181a static identity in favour of the new European norm. However, the Aboriginalperson may view the process differently and perceive his or her identity asdynamically expanding to include and adapt to an outside influence, whilemaintaining a distinct and unbroken continuity with the past: . . the twin polesof total assimilation and total maintenance of indigenous culture in a contactsituation represent theoretical alternatives which are never realized. Betweenthem lies the range of what actually occurs . . . cultural adjustment and/orsynthesis.”195 The Aboriginal is Canadian. He or she is Indian. He or she isboth. The influence of each viewpoint will vary greatly in individual cases, but “.• • neither is valid to the exclusion of the other; rather, both are true, and fullunderstanding of the Indian’s present and past cannot exclude either view.”196This divided loyalty poses a “ . . more exacting problem for solution, for itsupposes more than one loyalty on the part of the Indian.”197It is submitted that the words of the lnuit entertainer Susan Agluekark tothe Dobbie-Beaudoin Committee capture the essence of a synthesized worldview which is more accurate than the singular view that informs the Inquiry callfor fundamental change. She believes there is a future for the lnuit in which theycan adopt the best of the Qablunaat (white) way without sacrificing Inuk identity:We’ll never go back to hunting on dog sleds, living inigloos or living in tents. It’s never going to happen.It’s past. It’s gone. And, one way or the other, it wasgoing to happen.There’s nothing in the world that says that we’regoing to lose our culture. We’re not going to do that.We can go on, speaking lnuktitut, teaching Inuktitut,living lnuit ways. Like, I can hunt, I can sew; that’spart of lnuit tradition that any Inuk woman has to huntand sew, and I can do that. But I can come downsouth and be on stage and work with lnuit Tapirisat,and shop for my clothing.195 E.P. Patterson, The Canadian Indian: A History Since 1500, (Don MiNs, Collier-Macmillan,1972) at 169.196 Ibid. , at 3.197 Ibid. , at 30.182I can go back home and go into an elders home andsit on the floor and eat raw meat with my elder. But Ican also come back to Ottawa the next day and eat ina restaurant with a Qablunaat, and that doesn’t affectme, doesn’t change me. 198The shift in judicial attitudes noted by the Inquiry is reflected in, andprobably has contributed to, the acceleration of the pace of political changewhich, as previously noted in chapter four, now concerns even OvideMercredi.199 Nevertheless, time seems to move very slowly for those who wait inadverse circumstances and whose essential cause is just. Adams notes thisimpatience with characteristic and justifiable passion: ‘The Indian seeks as withmost Canadians, a real cultural identity. Because we are so oppressed,because our culture has been so eroded and disorted, our search for identity isso urgent.’20°The concern, exemplified both by the dissent within the Aboriginalcommunity outlined in chapter four, and the relative isolation of the Inquiry frommuch of mainstream thought, as outlined in chapter one, is that thisunderstandable urgency, taken by some to the extremes of ‘Red Power201 and‘radical nationalism,’202 not carry rhetoric beyond the assertion of culturalidentity to a distortion of it. The White Paper of 1969203 triggered the ‘RedPaper’ of 1970 wherein the Indian Chiefs of Alberta adopted Hawthorn’s idea of‘citizen plus’:204 ‘Indians should be regarded as ‘Citizens plus’; in addition tothe normal rights and duties of citizenship, Indians possess certain additional198“A Qablunaat is a Human Being, So is an Inuk. 1 Can Put the Two Together.” The VancouverSun (8 January 1992) at A4.199 Susan Delacourt, “Fast-paced Talks Alarm Natives’ The Globe and Mail (22 April 1992) at Al.Mercredi has characterized the pace of negotiations as” . . . not very comfortable [and] a processthat is not designed to take care, it is not designed to take caution.”200 Patterson, supra, note 187 at 185.201 Brakel, supra, note 121 at 2, and see, chapter one.202 Howard Adams, Prison of Giass: Canada from a Native Point of View (Saskatoon, Fifth House,1989 ) at 169, and see, chapter one. -203 Dept. of Indian Affairs and Northern Development, Statement of the Government of Canadaon Indian Policy, 1969204 Hawthorn, supra, note 186.183rights as charter members of the Canadian community.”205 The unilinear,romantic, and only partially accurate communitarian world view posited by theInquiry includes a potential to justify “additional rights” at the unnecessaryexpense of existing individual “rights of citizenship.”It is submitted that actually existing Indianism, wherein the Aboriginalperson may be both the holder of individual rights and the bearer of groupresponsibilities,206 demands the more balanced approach suggested byGreschner’s analysis of the relationship of feminism to individualism andcomm unitarianism.207 She argues that neither communitarianism norindividualism, for all their merits, is a sufficient base for feminism. In a likemanner, this thesis argues that communitarianism, while an appropriate “worldview” in some circumstances, generates an incomplete response to the needsof actually existing Indianism which requires a significant individualisticcomponent.She describes feminism as stemming from an oppression “in every facetof life”208 She states that women have very diverse views as to the precisecauses of and solutions to this oppression, but the very generalized goal ofending that subordination to men is “the common catalyst and objective offeminism.”209Chapter one of this thesis relates an Aboriginal experience of oppressiongenerating a “community-constituting understanding”210 about the objective ofrelieving the yoke of subjugation and achieving self respect. Chapter four205 Patterson, supra, note 187 at 180.206 See Patrick Macklem,’ First Nations Self-Government and the Borders of the Canadian LegalImagination N, [1991] 36 McGill L. J. 383 at 390.207 Donna Greschner, Feminist Concems With the New Communitarians: We Don’t Need AnotherHero, in A. Hutchinson and L. Green, eds, Law and the Community: The End of Individualism(Toronto, Carswell, 1989) 119.208 Ibid. ,at 121.209 Ibid.210 McDonald, supra, note 138.184describes how such a process can provoke a diversity of opinion about themeans to achieve that common goal.Greschner observes that the diversity of views within feminism is related,in part, to whether the course should be the amelioration of the feministexperience or the promotion of it; is motherhood a condition to be improved orran experience that can lead us to a new society?’211 A central question withrespect to the issue of Aboriginal justice, highlighted by the Inquiry’s relativelyisolated call for ‘major changes,’212 is whether the colonization experience is areason to improve the system, or, the basis for a fundamentally different andseparate system; is the role of Aboriginal self-government to ‘[adjust] the yokeso it chafes less’213 or to remove it altogether?Greschner states that, . . . the foremost insight and complaint of feminists[is that] standards, rules and theories have been constructed by men using maleexperiences, valuing what has been important to men and ignoring, if notdenigrating, the experiences and interests of women.’214 In a similar vein, J.C.Smith notes that discrimination against Indians is, ‘. . . the result of the fact thatthe Native peoples of Canada are not valued, their experience is discountedand their world view denied or ignored.’215Feminists are described as relating strongly to some aspects ofcommunitarianism. They are said to analyze conflict in terms of an ongoingrelationship, whereas men are said to analyze such issues in terms ofhiererarchical rules. The women’s way is referred to as the ‘care’216 model and211 Greschner, supra, note 207 at 123.212 lnquiiy, supra, note 1 at 265.213 John D. Whyte, ‘The Aboriginal Self-Government Amendment: Analysis of Some LegalObstacles in, David C. Hawkes and Evelyn Peters, Aboriginal Peoples and ConstitutionalReform: Workshop Report (Institute of Intergovernmental Relations, Queen’s University, 1987)77 at 78.214 Greschner, supra, note 207at 122215 J c Smith ‘Psychoanalytic Jurisprudence and the Limits of Traditional Legal Theory CriticalLegal Studies (materials, graduate seminar, University of British Columbia, 1991).216 Greschner, supra, note 207 at 126.185the men’s way as the ‘justice”217 model, a distinction which parallels to someextent the restorative and adversarial models of justice contrasted by theInquiry. Additionally, women are said to articulate their identity in terms ofrelations with others, the ‘situated” self,”218 whereas men tend to more singularconceptions of self, the ‘unencumbered” self.219 In a somewhat similar way, theAboriginal conception of society is described by Boldt and Long in uniquely“situated” and communitarian terms as: “cosmocentric rather than homocentric[where] . . . their reference point was not the individual but the ‘whole,’ which isthe cosmic order. Their conception of the individual was one of subordination tothe whole.”220 Aboriginals and feminists could comfortably share the view that,connectedness and care, as a metaphysics and an ethics, more accuratelyreflects [their] experiences than liberalism’s paradigm of separate personsrelating to each other through the mechanism of abstract rights.”221 The feministrejects the liberal notion of an atomistic, unconnected, unsituated self as simplyinconsistent with the experience of the connectedness of pregnancy, birth andmotherhood.222 In a like manner, the unsituated self is inconsistent with theexperience of the Aboriginal steeped in the communal traditions of clan, tribe orreserve.However, Greschner raises a warning flag about communitarianism thatinforms the repeated references in this thesis to actually existing Indianism. Sheargues that an impulse behind communitarianism is a nostalgic attempt, “ . . . toreclaim the political theory and practice of a prior time when politics wasallegedly guided by a consensus on the common good.”223 The Aboriginal217 Ibid.218Michael Sandel, Liberalism and Its Critics in, Smith, Elliot and Grant, supra, note 116 at 1 -24.219 Ibid.220 Menno Boldt and J. Anthony Long, “Tribal philosophies and The Canadian Charter of rightsand Freedoms” in, Menno Boldt and J. Anthony Long (in association with Leroy Little Bear) eds,The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto, University of TorontoPress, 1984) 165 at 166.221 Greschner, supra, note 207 at 127.222 Ibid. ,at 134.223 Ibid. ,at 128.186memory of a past ‘common good’ may be distinctly more positive thanwomen’s, but they share a concern about the contemporary sufficiency of anethical theory that places the family or group before the individual woman orAboriginal personGreschner counsels that women should reject communitarianism forpositing ‘the notion of a self that is formed completely by the groups withinwhich it finds itself.’224 Women must have the choice to escape or reject thevalues into which they were born: ‘One is not born but rather becomes afeminist.’225 She argues that, ‘an adequate conception of the self must includeall of women’s experiences, not just our connections but also our rejection ofexisting attachments and our creation of new ones.’226 In a like manner someAboriginals will harbour a . . . genuine reluctance toward the traditional way oflife and . . . [wish to] search for models outside those provided by thecommunity.’227Greschner concludes that neither liberalism nor communitarianism issufficient from the perspective of feminism. The experience of women suggeststhat a comprehensive, more realistic conception of self borrows from both sidesof the debate. She asserts that feminists must seek a ‘synthesis,’228 ‘a middleway,’229 which is not necessarily simply between the two, but may be superiorto either alone. The appropriate language of feminism is ‘interdependence,’ - a‘connection with others, but not a fusion.’23°Women seek to forge a different, but continuing, relationship with men,founded on mutual respect. In a like manner, effective Aboriginal justice will beIbid., , at 135.Ibid.226 Ibid. at 136.227 Cree Report, supra, note 21 at 50; and see, chapter four.228 Greschner, supra, note. 207 at 125.Ibid.230 Ibid. ,at 141.187a synthesis, or, ‘principled interaction’231 or middle way between two justicesystems that draws from the strength and wisdom of each. It is submitted thatCharter principles of fundamental justice would buttress the adjudicationweakness of Aboriginal justice without detracting from its reconciliation strength.Such integration would significantly contribute to Aboriginal confidence in thecapacity of its own structures of justice to sensitively respond to the demands ofactually existing Indianism,Without that confidence the system cannot commandthe respect and acceptance that are essential to itseffective operation.232231 Unlocking Aboriginal Justice: Alternative Dispute Resolution for the Gitksan and Wet’suet’enPeople (A Proposal to the B.C. 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The Queen (1889) 14 A.C. 46(J.C.P.C.).NEWSPAPER ARTICLES (SIGNED)Armstrong, T., uSuicide Points to Collapse of Nation” The Vancouver Sun (4October 1991) at A3.Aubrey, J., “Fearful Native Women Plead for Protection Against Ancient Rituals”The Vancouver Sun (16 March 1992) at A3.Aubrey, J., “Restigouche: One Band’s Experience of How Self-GovernmentWorks When You Try It” The Vancouver Sun (18 February 1992) at A4.Barrett, T., “Self-Rule for Natives Unresolved” The Vancouver Sun (13 May1992) at Al.Bryden, J., “Muironey Calls for Definition of Native Self-Government” TheVancouver Sun (18 March 1992) at 13.Cernetig, M., “Arctic Warms to Christmas Presence” The Globe and Mail (24December 1991) at Al.Corcoran, T., “Indian Casinos: One Way to Renewal” The Globe and Mail (21May 1992) at B2.Delacourt, S. and Mackie, R., “Compromise Makes Day at Unity Talks” TheGlobe and Mail (28 May 1992) at Al.Delacourt, S., “A Tale of Two Nations” The Globe and Mail (26 May 1992) at Al.Delacourt, S., “Fast-paced Talks Alarm Natives” The Globe and Mail (22 April1992) at Al.195Delacourt, S., ‘Natives Promised Self-government’ The Globe and Mail (10April 1992) at Al.Delacourt, S., ‘Talks Shape Third Order of Government, The Globe and Mail (12May 1992) at Al.Freeman, A., ‘Cigarette Smuggling ‘Escalating’ ‘The Globe and Mail (19November 1991) at Al.Gagnon, L., ‘Anglo Feminists Aren’t Standing Up for Their Native Sisters’ TheGlobe and Mail (28 March 1992) at D3.Gaibraith, J. and Velk, T., ‘What It Is and What It Isn’t’ The Globe and Mail (20February 1992) at A17.Henton, D., ‘Women Fear Their Communities Will be Dictatorships’ TheVancouver Sun (21 January 1992) at A6.Lewis, C., ‘Commission Backs Natives’ Demands For Self-Government” TheGlobe and Mail (27 March 1992) at A6.Mackie, R., ‘Self-rule for Natives Tall Order, Panel Told: In Ontario Most Not onReserves’ The Globe and Mail (30 July 1991) at Al 2.Muhlberger, S., ‘Individual Comes First’ The Globe and Mail (21 November1992) at A18.Nagle, P., ‘Fear of Chiefs Prompts Self-Government Battle’ The Vancouver Sun(2 April 1992) at A8.O’Neil, P., ‘Conference Fails to Shed Light on Future of Self-government’ TheVancouver Sun (16 March 1992) at A9.Olive, D., ‘Confrontation is Still the Bottom Line for Canada’s Natives” TheGlobe and Mail (15 June 1991) at D4.Picard, A., ‘A One Way View From the Barricades’ The Globe and Mail (3August 1991) at C14.Platiel R. and York, G., ‘Native Rights Inherent, Panel Says The Globe and Mail(14 February 1992) at A5.Platiel, R., ‘ ‘Impact of Colonization’ Felt for Generations, Erasmus Says’ TheGlobe and Mail (5 June 1992) at A6.Platiel, R., ‘Aboriginal Women Challenge Leadership” The Globe and Mail (24April 1992) at A4.Platiel, R., ‘Aboriginal Women Divide on Constitutional Protection’ The Globeand Mail (20 January 1992) at A3.196Platiel, R., ‘Native Panel Ponders Constitutional Role’ The Globe and Mail (31October 1991) at A4.Platiel, R., ‘Native Rights Debated at UNTM The Globe and Mail (20 February1992) A4.Platiel, R., ‘Royal Commission on Native People Set to Begin’ The Globe andMail (21 April 1992) at Al.Platiel, R., ‘Status Indians Number Half a Million’ The Globe and Mail (30August 1991) at A7.Ripstein, A., ‘Breaking the Rules for a Reason’ The Globe and Mail (11September 1990) at A17.Roberts, D., ‘Separate Native Justice System Rejected for Manitoba’ The Globeand Mail (29 January 1992) at Al.Rushdie, S., ‘1,000 Days Trapped in a Metaphor’ The Globe and Mail (13December 1991) at A19.Safire, W., ‘Legal Gambling a Greater Threat Than Any Racial Slur” TheVancouver Sun (8 January 1992) at A13.Shoalts, D, ‘Native Courts Inevitable, Chiefs Tell Justice Ministers’ The Globeand Mail (7 September 1991) at A5.Shoalts, D, ‘Natives Value Justice Differently” The Globe and Mail (9September 1991) at Al.Simpson, J., ‘Broad, Bold and Breath-Taking, But What Does It Mean?’ TheGlobe and Mail (25 March 1992) at Al 1.Simpson, J., ‘The Telling Nature of the New Royal Commission on AboriginalAffairs’ The Globe and Mail (30 August 1991) at A14.Wagamese, R., ‘Alienated and Alone: The Urban Indian” The Vancouver Sun(20 January 1992) at AlO.Wagamese,R., “Every Voice Has a Right to Be Heard”The Vancouver Sun (13January 1992) at AlO.-WaIdie, P., ‘Reserve Turns Down Plan for Las Vegas-Style Casino” The Globeand Mail (11 November 1991) at A5.Wilson, D., “Loud, Clear Voice of the ‘Other’ Indians” The Globe and Mail (17December 1991) at Al.NEWSPAPER ARTICLES (UNSIGNED197‘A Constitutional Primer: Aboriginal Rights’ The Globe and Mail (11 January1992) at A6.‘A Constitutional Primer: How Powers are Divided” The Globe and Mail (8January 1992) at A4.“A Constitutional Primer: The Social Charter’ The Globe and Mail (13 January1992) at A4.‘A Qablunaat is a Human Being, So is an Inuk. I Can Put the Two Together.’The Vancouver Sun (8 January 1992) at A4.‘Aboriginal Canadians and the Justice system” The Globe and Mail (3 August1991) at D6.‘Dancing Around the Law of the Land’The Globe and Mail (11 February 1992)at Al 6.“Defining Quebec’s Distinctiveness” The Globe and Mail (6 February 1992) atA16.‘Defining the Terms of Native Justice” The Globe and Mail (26 December 1991)at A14.“For Self-Government, In a Canadian Context” The Globe and Mail (3 June1992) at A22.“How the Charter Changes Justice,’The Globe and Mail (17 April 1992) at A17.1nuit Leaders Call for Stiffer Sentencing” The Globe and Mail (29 January1992) at A6.“Natives Quarrel with Quarry Proposal” The Vancouver Sun (8 January 1992) atA8.“Ontario Native Police in Five Years Predicted’ The Globe and Mail (27February 1992) at A7.“Perils Lurk in Self-Rule, Outsiders’ Group Says” The Vancouver Sun (21February 1992) at A4.“Shaping Canada’s Future Together” The Globe and Mail (25 September 1991)at A6.‘Urban Natives Fear Self-Government Will Leave Them Out In the Cold” TheGlobe and Mail (28 December 1991) at Al. -‘Use ‘Any Means Necessary’ to Control Fate, Indians told” The Vancouver Sun(19 November 1991) at A5.‘Violence Against Women”, The Vancouver Sun (23 March 1992) at A9.198REPORTSHawthorn, H., A Survey of the Contemporary Indians of Canada, Vol. 1 (1966)House of Commons, Indian self-Government in Canada, Report of the SpecialCommittee on Indian Self-Government, 1983.Justice on Trial: Report of the Task Force on the Criminal Justice System andIts Impact on the Indian and Metis People of Alberta, (Alberta, March 1991)(Chair: Mr. Justice R. 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