A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Support for Indigenous Legal Traditions

Indigenous legal traditions have received both international and domestic support for their recognition, revitalization, and full integration and implementation alongside the legal systems of nation-states. While there are numerous sources to draw upon, the most significant resources demonstrating this support are the United Nations Declaration on the Right of Indigenous Peoples, and the Canadian Truth and Reconciliation Commission’s Calls to Action. Both of these documents describe the place and role of Indigenous people in international and Canadian politics. That is, these documents envision a decolonized world, and provide a clear path to achieve that vision, where Indigenous peoples are treated with respect and dignity, which means having their cultural, spiritual, social, political, economic, and legal institutions protected and respected (Anaya 2007).

The United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important document that provides a framework for states in the international community to look towards, and use it to ground changes in their relationship with Indigenous peoples within their borders. UNDRIP begins from the position that Indigenous people represent unique populations, and are worthy of having their cultural and political institutions protected by international and domestic law. UNDRIP fulfills this role at the international level, since it outlines how states like Canada should act towards Indigenous people, including, among other things, a call for states to recognize and implement Indigenous legal traditions.

The first UNDRIP provision that supports Indigenous legal traditions is Article 3, which says Indigenous peoples have the right to self-determination. While this Article does not explicitly mention Indigenous legal traditions, the right to self-determination is an all-encompassing right that includes the right to exercise Indigenous legal traditions (Borrows 2010; Leonardy 1998). In fact, the right to self-determination provides a foundation for a more thorough implementation of Indigenous legal traditions, since self-determination, or self-governance, creates the space and capacity to develop laws at the local level in light of local realities, as well as pursue and protect cultural practices that support and reaffirm Indigenous legal traditions. Article 5 explicitly supports Indigenous legal traditions, saying, “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions…” (emphasis added). However, UNDRIP does add an important qualification on its support of Indigenous legal traditions in Article 34, stating that Indigenous peoples have the right to exercise their unique legal traditions, but in line with international human rights standards.

The Truth and Reconciliation Commission’s Calls to Action

The Truth and Reconciliation Commission’s Calls to Action represents the most recent mainstream support for Indigenous law in Canada. Much like UNDRIP, the TRC Calls to Action represent a path towards decolonization and reconciliation in the wake of the Indian Residential School experience, which, among other things, attempted to destroy Indigenous cultural traditions, including the values that were integral to the operation of Indigenous legal traditions (TRC 2015b). The TRC Calls to Action contain numerous provisions that either explicitly or implicitly support Indigenous legal traditions. With respect to explicit support, both Calls to Action 42 and 45 call on different levels of government in Canada to work together towards reviving and implementing Indigenous justice systems in ways that line up with Aboriginal and treaty rights, as well as the values embedded in UNDRIP. In other words, the TRC suggests Indigenous legal traditions must be revived and implemented in order to achieve true reconciliation in Canada between Indigenous peoples and non-Indigenous peoples. But it also reaffirms UNDRIP’s requirement that Indigenous legal traditions respect international human rights standards.

In terms of indirect support, the TRC Calls to Action 27, 28, and 50 provide guidance regarding educational and institutional initiatives that can foster the growth of Indigenous legal traditions in Canada. Call to Action 27 encourages the Federation of Law Societies in Canada to have provincial law societies provide their members with cultural competency training in areas such as Aboriginal and treaty rights, Crown-Indigenous relations, and most significantly,  Indigenous law. Call to Action 28 is similar, but calls upon Canadian law schools to require all law students take at least one course that discusses Aboriginal and treaty rights, UNDRIP, and most significantly, Indigenous legal systems. Finally, Call to Action 50 requires different levels of government in Canada to fund Indigenous law institutes, which would develop, analyze, and utilize Indigenous legal traditions.