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UBC Theses and Dissertations

Doing the "right" thing : aboriginal women, violence and justice Koshan, Jennifer


This thesis focuses on Aboriginal women as survivors of intimate violence, and as participants in debates about justice and rights in the academic, political and legal spheres. While several federal and provincial reports have documented the adverse impact of the dominant criminal justice system on Aboriginal peoples, most of the reports fail to consider the impact of the dominant system, and of reform initiatives on Aboriginal women, who engage with such systems primarily as survivors of violence. Although feminist legal scholars and activists have focused on survivors of violence in critiquing the dominant justice system, such discourses have also tended to ignore the needs and concerns of Aboriginal women in recommending reforms to the dominant system, as well as in theorizing the causes and sites of intimate violence. Using feminist methods, I explore how the writings of Aboriginal women have begun to fill these gaps. In focusing on gender and racial oppression, Aboriginal women have complicated theories on and reforms around intimate violence, and have demanded that they be included in the shaping of public institutions in both the Canadian legal system, and in the context of Aboriginal self-government. While Aboriginal women largely support the creation of Aboriginal justice systems, some have expressed concerns about the willingness of Aboriginal and non-Aboriginal leaders to include women in the process of creating, implementing and operating such systems. The Canadian Charter of Rights and Freedoms, as well as Aboriginal rights under the Constitution Act, 1982 have been advocated as means of achieving Aboriginal women's participation in this context. This gives rise to a number of fundamental questions which I examine in my thesis. What is the historical basis for the participation of Aboriginal women in the political process, and for survivors of violence in both the dominant and Aboriginal justice systems? What is the significance of the absence of Aboriginal women from dominant discourses on justice and intimate violence? Might a broader level of participation for survivors of violence, both Aboriginal and non-Aboriginal, ameliorate the problematic aspects of the dominant justice system? Does the Canadian Charter of Rights and Freedoms provide a vehicle for survivors of violence who seek a greater level of protection and participation in the dominant justice system? Can the Charter, or Aboriginal rights under the Canadian constitution, assist Aboriginal women in establishing a right of participation in the processes leading to the creation of Aboriginal justice systems, and their participation in such systems once they have been created? What are the limitations of rights discourse in this context? My analysis suggests that the Supreme Court of Canada's conservative approach to rights, as well as more fundamental limitations in rights discourse, make constitutional litigation within the dominant system a sometimes necessary, but not ideal strategy for Aboriginal women in defining their involvement in the political and justice arenas. On the other hand, there is potential for rights discourse to bear more fruit once Aboriginal decision making fora are in place, in keeping with holistic approaches to interpretation, and the traditional roles of Aboriginal women and survivors of violence in justice and in the community.

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