The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

   

Chapter 2

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ABORIGINAL CONCEPTS OF JUSTICE

Introduction
Aboriginal People and the Role of the Elders
Aboriginal and Non-Aboriginal Peoples: Two Worldviews
The Meaning of Justice
Aboriginal Concepts of Law
Aboriginal Culture
Cultural Imperatives

Ethic of Non-interference
The Rule of Non-Competitiveness
Emotional Restraint
Sharing
Conflicts Arising from Aboriginal Cultural Imperatives
Other Rules of Behaviour

Cultural Imperatives and Systemic Discrimination
Language Issues

Understanding Words
Understanding Legal Concepts
New Concepts—Old Words

Conclusion

 

Aboriginal Concepts of Justice TOP

Introduction TOP

When the white man first seen us, when they first said, “Well, there’s something wrong with these people here. They don’t have no religion. They have no judicial system. We have to do something for these people.” I guess that must have been what they thought because they totally screwed up what we already had.

They introduced new religion and there was nothing wrong with our old religion. They just didn’t understand it. We had our own ways of teaching our children, like the Elders and everything. There was nothing wrong with that way of teaching children. They just didn’t understand it.

The same thing with our judicial system. We had that judicial system and the white people, when they came here, they didn’t see that. They said, “These guys have nothing. We have to introduce all these different things to them so they can be one of us.” That’s exactly the problem that we have.

Chief Philip Michel

Brochet

Aboriginal peoples have always had governments, laws and some means of resolving disputes within their communities. North American Aboriginal societies were dynamic cultures that adapted constantly to meet changing circumstances. Aboriginal people were influenced by their relations with one another in migrations, warfare, conquest, and in commercial and/or political unions.

They had vast, complicated, intertribal trading systems that covered the continent. They developed sophisticated external relationships between and among tribes that cemented these commercial and political relations. Later, with the coming of Europeans, they extended similar trade and diplomatic relations to various countries in Europe.

Aboriginal peoples have persisted for thousands of years as distinct cultural entities. They never have been conquered in war. They were allies. They have never surrendered their original right to govern themselves in accordance with their customs and cultures. Although successive federal governments have tried to interfere with or diminish that right, and to replace it with their concepts of "Aboriginal" government, they have done so without much success.

More importantly, successive federal governments and religious organizations in Canada have tried to interfere with, and even destroy, the cultures of Aboriginal people and to supplant them with European cultures and values, again without much success. At best, this amounts to discrimination. At worst, it is cultural genocide.

The daily, systemic cultural discrimination inflicted upon Aboriginal people by the justice system, however unintentional, demeans and diminishes the importance and relevance of their cultures, languages and beliefs. At the very least, as one Aboriginal language interpreter told our Inquiry, Aboriginal people have a right to understand what is happening to them.

I was appalled to learn that a man had been hired [as an interpreter] who does not speak any native Aboriginal language at all and it still exists. And again, I ask these questions; how has this man been able to interpret for an Aboriginal person who cannot speak or understand English? How many Aboriginal people have been denied the right to defend themselves because this man is not capable of understanding and interpreting their testimony? How many Aboriginal people have been convicted because this man was unable to translate a Crown attorney’s questions accurately so that they understand what they were being asked; therefore, unknowingly, and perhaps falsely, incriminating themselves? And how many Aboriginal people have pleaded guilty out the sheer futility of what seems to be a hopeless situation?

Barbara Whitford
Portage la Prairie

"What is certain for Aboriginal people," that same person added, is that what "they have managed to retain to a considerable degree, in all this turmoil, is their distinct identity." In fact, despite attempts to eradicate Aboriginal cultures, cultural distinctiveness remains a hallmark of Aboriginal life.

In this chapter, we discuss Aboriginal and non-Aboriginal concepts of justice, in brief. We discuss how they are similar and how they are different. We try to explain how they work and how their purposes and processes differ. TOP

 

Aboriginal People and the Role of the Elders TOP

To understand an Aboriginal community, one must appreciate first the role that the elders play within it. The prominent position accorded to elders is a striking feature of Aboriginal societies. They have been largely responsible for retaining much of the knowledge of Aboriginal cultural traditions about which we heard so much in the course of our hearings.

Elders—both men and women—are the "teachers" and, in some cases, are the "healers"—that is, the "medicine people"—of the tribe. The role of elders within Aboriginal communities sometimes varied, but generally consisted of helping the people, individually and collectively, to gain knowledge of the history, traditions, customs, values and beliefs of the tribe, and to assist them to maintain their well-being and good health. They were respected for their wisdom and for their experience, and for the fact that, having lived a long life, they were able to advise the people on what to do in difficult situations, as a result of that experience. In some tribal authorities today, councils of elders exist, with the right to advise tribal officials and tribal governments on various matters of interest to the tribe.

Elders have long been considered the ones who bridge between the ancient traditions and beliefs of the people and the modern-day influences that come into play in the day-to-day lives of Aboriginal men and women. This was so even in past times when there were only Aboriginal people on this continent.

"Medicine men" and "medicine women" were not necessarily elders in the sense that they were not necessarily people who had lived a long life. They were people who had been traditionally trained from their youth in the natural medicines and plants of the forests and fields, including training in their benefits and how they were to be used to heal the body’s ailments. In addition, they also received training in the treatment of the person’s spiritual and mental needs.

Although the role of elders and healers came under strong attack as a result of government policy, elders still have a place of prominence within Aboriginal communities and there still are people within Aboriginal communities with knowledge and training in the traditions of Aboriginal healing. The role of both elders and healers within Aboriginal societies is still very important and many Aboriginal people still go to them for advice, assistance and treatment, sometimes even in conjunction with treatment they may be receiving from medically trained professionals.

That is because, in almost all Aboriginal belief systems, each person has three aspects which make up his or her whole being. Those are the body, the mind and the spirit. It is said that for Aboriginal people to heal from whatever ails them, all aspects of their being need to be treated—not just one. In that respect, the Aboriginal belief is in the holistic treatment of the person. Aboriginal healers, when called upon to minister to a sick person, do not only administer medicines to the body, but also conduct spiritual ceremonies for the spirit and counsel the person to help clear his or her mind of the effects of the sickness.

In Aboriginal beliefs, if only the body is treated, then healing cannot take place properly. If the body becomes ill, then the spirit and mind also are affected. In the same way, it is believed that before the body becomes sick, there are often signs of the impending sickness apparent in the mental or spiritual status of the person. Preventive steps thus can be taken by addressing the person’s spiritual needs early on. Keeping the spirit strong was seen as practising preventive medicine. Elders, and people who know of traditional ways of healing, are considered very important and are respected highly by Aboriginal people.

Some Aboriginal elders believe that Aboriginal people who are ill must have all three aspects healed fully in the Aboriginal way. Some have said that if an Aboriginal person goes to a non-Aboriginal doctor, then that person cannot be healed properly in the traditional way, since traditional healing methods and modern medicine do not mix. Others believe that if medical doctors are treating the person’s body, then traditional Aboriginal healers can and must attend to the treatment of the person’s mind and spirit. In the same way, if the person is receiving psychiatric treatment from a psychiatrist, then his or her physical and spiritual needs still can be met through traditional healing methods. In this way, elders believe that there is always room for traditional methods of healing to take place.

In the case of Aboriginal inmates, elders believe that healing is required for them, even though there may not be any direct, harmful physical effects from incarceration, because they believe that there are harmful effects upon an individual’s mind and spirit from being locked up.

Many Aboriginal people believe that as well, particularly some of the Aboriginal inmates from whom we heard. Some institutional officials are just beginning to recognize the potential importance that Aboriginal elders and healers can have within their institutions.

It is apparent that Aboriginal elders will continue to play a very important role in the future of Aboriginal societies. Understanding the role which they play is important to appreciate why events evolve as they do within Aboriginal communities, because the elders wield great influence. TOP

 

Aboriginal and Non-Aboriginal Peoples: Two Worldviews TOP

Aboriginal peoples do not adhere to a single life philosophy, religious belief or moral code. Indeed, there are and have been considerable differences among tribes. The Aboriginal peoples of North America, for the most part, hold fundamental life philosophies different from those of the dominant European-Canadian society. These differences in worldviews between European-Canadians and Aboriginal people are broad enough and general enough to make most European-Canadian institutions incompatible with the moral and ethical value systems of Aboriginal Canadians.

At a fundamental cultural level, the difference between Aboriginal and Western traditions is a difference in the perception of one’s relationship with the universe and the Creator. For instance, in the Judeo-Christian tradition:

[Mankind was told to] fill the earth and subdue it, rule over the fish in the sea, the birds of heaven, and every living thing that moves upon the earth.1

In contrast, Ojibway thought believes that man does not hold "dominion" over the earth and all its creatures. In fact, man is the least important entity in creation.

Creation came about from the union of the Maker and the Physical World. Out of this union came the natural children, the Plants, nurtured from the Physical World, Earth, their Mother. To follow were Animalkind, the two-legged, the four-legged, the winged, those who swim and those who crawl, all dependent on the Plant World and Mother Earth for succour. Finally, last in the order came Humankind, the most dependent and least necessary of all the orders.2

The differences between these two worldviews account, in large part, for the differences in the philosophy, purposes and practices of legal and justice systems. Each worldview is the basis for the customs, manners and behaviour that are considered culturally appropriate. One’s individual or cultural understanding of humanity’s place in creation, and the appropriate behaviour that understanding dictates, pervade and shape all aspects of life.

Psychological and anthropological profiles of Ojibway, Dakota, Apache, Navajo and Cheyenne subjects have identified recurring personality characteristics which seem to be culturally induced and which are so universal that they could be equated with "primary Native values."3

The seven traditional values of the Ojibway, or Anishnabe, are wisdom, love, respect, bravery, honesty, humility and truth.4 A study of the psychological and behavioural patterns of the Sioux identifies several central values for the Dakota people: conformity with the group and harmony within it; concentration on the present; ability to make personal decisions; reluctance to show emotions; reverence for nature even while using it; and constant awareness of God.5 The four great virtues of the Oglala Dakota, taught in the Sundance, are bravery, generosity, fortitude and integrity.6 Apache beliefs and values can be stated as: respect for the autonomy of the individual; non-interference; desire for harmony in interpersonal relations; respect for individual freedom; and cooperation and sharing.7

The basic values of Cheyenne culture are: respect for the spirit world; desire for harmony and well-being in interpersonal relationships; desire for harmony and balance with nature; bravery and mastery of self; generosity, sharing and cooperation; individual freedom and autonomy consistent with cooperation and collective well-being; and humility and respect in all relationships.8

None of these values would be found inadequate or inappropriate by the dominant Canadian society; the same or similar values exist within most of the world’s cultural traditions. However, European-Canadian society has developed conventions which allow some traditional ethical and moral values to be separated, at least temporarily, from everyday life. Aboriginal North Americans tend not to do so.

An obvious example is the ease with which a member of the dominant society can plead not guilty to a charge for which that person, in fact, is responsible. In the Western tradition, the plea is not seen as dishonest; it is understood as a conventional response to an accusation, based on the doctrine that people are not required to incriminate themselves and that it is up to the prosecution to prove guilt. In Aboriginal societies, to deny a true allegation is seen as dishonest, and such a denial is a repudiation of fundamental and highly valued standards of behaviour. As well, the European concept of "guilty/not guilty" runs counter to most Aboriginal philosophy, so much so that Aboriginal societies have no words for "guilty" or "not guilty" in their languages because they have not developed these concepts. TOP

 

The Meaning of Justice TOP

At the most basic level of understanding, justice is understood differently by Aboriginal people. The dominant society tries to control actions it considers potentially or actually harmful to society as a whole, to individuals or to the wrongdoers themselves by interdiction, enforcement or apprehension, in order to prevent or punish harmful or deviant behaviour. The emphasis is on the punishment of the deviant as a means of making that person conform, or as a means of protecting other members of society.

The purpose of a justice system in an Aboriginal society is to restore the peace and equilibrium within the community, and to reconcile the accused with his or her own conscience and with the individual or family who has been wronged. This is a primary difference. It is a difference that significantly challenges the appropriateness of the present legal and justice system for Aboriginal people in the resolution of conflict, the reconciliation and the maintenance of community harmony and good order.9 TOP

 

Aboriginal Concepts of Law TOP

There were and are Aboriginal laws. There were and continue to be Aboriginal governments with lawmaking powers and with provisions to enforce those laws. There were and are Aboriginal constitutions that are the supreme "law of laws" for some Aboriginal peoples and their nations.

Examples of such indigenous governments and their laws exist around the world. In the United States, tribal governments have long been recognized by U.S. courts as "domestic, dependent nations" with the inherent power to enact such laws as they deem necessary. We have described how these laws are interpreted and enforced in our chapter on Aboriginal justice systems.

No society can exist without law. Laws grow from the customs, traditions and rules of a society of people. They exist to inform people what that particular society considers to be acceptable and unacceptable.

Many non-Aboriginal writers in the past have regarded Aboriginal societies through the stereotypes and cultural biases they held at that particular time, or that they accepted as "true" from the time of the original account. These histories, for the most part, still comprise most of the history courses taught in Canadian schools, from elementary school to university. One such writer was Diamond Jenness, whose books were and still are referred to widely in many schools and universities as authoritative accounts of Aboriginal societies.

In the absence of chiefs and of any legislative or executive body within the tribes and bands, law and order depended solely on the strength of public opinion. There were no written laws, of course; merely rules and injunctions handed down by word of mouth from an immemorial antiquity, and more temporary taboos operative during the lifetime of an individual. Persuasion and physical force were the only methods of arbitrating disputes, social outlawry or physical violence the only means of punishing infractions of the moral code or offences against the welfare of the band or tribe....

Fear of the blood-feud was a powerful restraint on murder, and social disapproval, more keenly felt in small communities than in large, checked the commission of many lesser crimes. Strangers, however, even people of a neighbouring tribe, might be robbed or killed with impunity; they had no rights, unless they married into a band or placed themselves under the protection of some powerful family.10

Such attitudes about Aboriginal people and the stereotypes they promote continue to persist, regardless of how much one might hope they would be out of favour or distasteful in today’s society. But they seem embedded firmly in Western culture. They spring from centuries-old theories, philosophies and policies that form a worldview through which Western man has perceived and interpreted other cultures.

Recently, however, more and more historians are seeking to divest historical accounts of past stereotyping and cultural bias in order to present a more realistic, more accurate and, perhaps, more fair version of history. This more recent account of Aboriginal society in Canada describes almost the same situation as does the previous author, but from a more neutral viewpoint:

Europeans’ pronouncements that Indians had no government were contradicted by their practice of dealing with Indian chiefs through the protocol of diplomacy with sovereign states. The bulk of evidence about Indian communities implies structures of political association irreconcilable with assumptions of anarchy. From anthropology comes the root conception of “kinship state”, a community of families and clans in which some of the ordering functions of society are performed by the kin groups individually while others are assigned to officers and councillors chosen cooperatively.

In this structure, as European observers were quick to notice, there was no law in the European sense, and no specialized apparatus of law enforcement. Binding decisions were made by legitimate officers, however, and before the intervention of Europeans eroded the chiefs’ authority there were forceful sanctions for both occasional decisions and enduring customs. In a community where every man bore arms no need existed for a corps of specialized police; any man could be appointed to act guard or do executioner’s duty. Early seventeenth-century observers reported that the paramount chiefs of the tribes sometimes inflicted corporal punishment upon criminals with their own hands. Families also bore responsibility for protecting kinsfolk, and the accompanying threat of vengeance sanctioned by custom proved an effective deterrent to potential wrongdoers. Such sanctions in their social context were more effectual than European procedures of criminal justice; Adriaen Van der Donck wonderingly noticed “how uncommon” crimes were among the Hudson River Indians. “With us,” he continued, “a watchful police is supported, and crimes are more frequent than among them.” Not recognizing the sanctioning functions performed by means that he had himself described, he was baffled to understand how there could be so little crime “where there is no regard paid to the administration of justice.” A lawyer himself, Van der Donck could recognize due process only when it appeared in the forms to which he had been trained. That fault was shared by other Europeans contemporary with himself and in following generations.11

Regardless of whether the laws of Aboriginal societies conformed to the preconceptions of Europeans, there were laws and a system of sanctions that allowed Aboriginal people to function in a coherent and orderly fashion. Aboriginal people could hardly be characterized, as Jenness implied, as living in anarchy or having a system of "social outlawry."

Indian tribes were internally more peaceful than European nations partly because of the kin-oriented sanctions pervading Indian villages, as distinct from the greater impersonality of European social relationships, and partly because Indian custom defined and punished fewer crimes than European law....

The same customary sanctions were notably tolerant of many sorts of behaviour that Europeans classed as crime, especially regarding deviant sexual and religious conduct. There was no crime of fornication or “unnatural vice” among Indians, nor was there any heresy as that was defined by European law. All sex relations except rare cases of rape were personal matters outside the jurisdiction of sachem and council, and religious belief was totally personal.... Indians knew nothing of the whole class of offences called by European lawyers “crimes without victims”. When one considers the floggings, jailings, hangings, torture and burnings inflicted by European states for the multitude of crimes that did not even exist in Indian society, one becomes painfully aware that an incalculably great proportion of European violence against persons was inflicted by the very agencies whose ostensible function was to reduce violence.12

This does not imply that Aboriginal societies were free of crime or criminal activity. There were laws against certain types of behaviour and, inevitably, as with all laws, they would be broken. However, the types of behaviours that were considered objectionable or aberrant might have been different from those identified by European societies. The manner in which Aboriginal people imposed sanctions was different too. This was to be expected, after all, since they sprang from a whole different world which had evolved entirely different societies from those in Europe.

Social control rested in kinship. Among native cultures the means of control was in the close contacts of their members. The sanctions of ridicule, avoidance and shame were effective means to check those deviants who fell into behavioural lapses. Internal, unofficial communication was the process.13

These types of sanctions suited most misbehaviours within a small, tightly knit group of people who often were family members. However, some crimes required more serious sanctions than mere scolding or ridicule. As in European societies, some crimes required the complete removal of the criminal from society. In most Aboriginal societies, this meant banishment. In such close, family-oriented societies, where survival depended upon communal cooperation, such sanctions were considered a humane alternative to death, no matter how traumatic they may have been to the offender.

However, there were other behaviours that Aboriginal societies recognized as crimes. Again, the reasons why Aboriginal people considered such behaviour criminal differed from the reasons perceived by European societies. So did the manner in which Aboriginal people sought to resolve such disruptions to their societies. These differences were frequently looked upon with a certain amount of disdain by Europeans who often interpreted the actions of Aboriginal people through their own cultural values and biases.

The French were frequently critical of the Huron for the lenient attitude they took towards thieves. The simplicity and relative impermanence of Huron possessions, and the sharing of goods and housing among extended families, probably made ownership intrinsically a matter of less concern to them than it was to Europeans (Herman 1956; Stites 1905). More importantly, however, because of the semi-public nature of Huron dwellings and the lack of any formal policing in their villages, there was little that could be done to protect movable possessions against theft. The main concern of the Huron was therefore to minimize the disruptive consequences of quarrels that might arise from such actions.

This was done by defining theft very narrowly, as the taking of goods forcibly from an individual or from inside a longhouse without permission. In theory, a person was entitled to carry off anything he found lying about unattended. In order to protect their valuables, both from fire and thieves, the Huron either carried them around with them or hid them in caches dug into the soil beneath their houses. The Huron did not fine or penalize a thief, nor did they permit a man from whom goods had been stolen to reclaim them without first inquiring how someone else had come to possess them. A refusal to answer constituted an admission of guilt. If a man could prove who had robbed him, he and his relatives were socially sanctioned to go to the thief’s longhouse and carry off everything on which they could lay their hands. Hence, relatives of a person who had stolen very little might find themselves bruised and despoiled. Again, pressure was put on kin groups to enforce good behaviour among their members.14

Treason and the practice of witchcraft, or the use of "bad medicine" in order to inflict injury upon another, also were treated as serious crimes. Treason was seen as the betrayal of the family group, or clan, and as such almost always required the death penalty. Witchcraft was a much more difficult activity to prove and it was handled in a more delicate manner. The person using witchcraft might have to pay some form of compensation. If, however, the person refused to compensate the complainant, the offender might face a death penalty. But these were extreme situations.

There was one other serious category of crime. The manner in which it was handled within Aboriginal societies shows the philosophy underlying the way in which Aboriginal people viewed law and justice.

In theory, murder placed an absolute obligation upon the kinsmen of the dead man to seek revenge by clamouring for the slaying of either the murderer or someone closely related to him. The obligation fell particularly upon the clansmen of the murdered person, that is, upon his sisters, mother’s brothers, and sisters’ sons.... Depending on the degree of relationship between the murderer and the murdered man, a killing might give rise to a prolonged blood feud between the clan segments, villages, tribes, or even confederacies to which they belonged. Thus blood feuds varied in scale from family quarrels to major wars. The Huron were well aware that no tribal organization and no confederacy could survive if internal blood feuds went unchecked. One of the basic functions of the confederacy was to eliminate such feuds among its members; indeed, between Huron, they were regarded as a more reprehensible crime than murder itself.15

Instead of bloody and disruptive feuds within the society, Aboriginal people settled upon a system of atonement and reparation by the offender to the victim. The payment would be borne by all members of the offender’s clan or family and it would be shared by all members of the victim’s clan or family. Only if such payment were refused did the clan have the right to resort to violence or arms.

The amount of the compensation could vary. The compensation for a crime against a chief or an elder, for example, was greater than that paid to a person of lower rank. The compensation for a crime against a woman was greater than that against a man. Since the penalty would be paid by the offender’s clan as a whole, and not merely by the individual offender, repeat offenders could expect to receive less and less support from their clan for their crimes. In this way, the clan or family, through peer pressure, would regulate behaviour within itself and exert influence throughout the society.

By making criminal activity a collective responsibility of a tribe, village or a clan, Aboriginal people were able to impose law and order without resorting to capital punishment or other harsh forms of sanctions. The philosophy in Aboriginal society was for all parties to acknowledge the crime, allow for some process of atonement, and install a system of reparation or compensation in order to restore harmony to the community.

But even more to the point, Europeans and Aboriginal people viewed the same crime of murder in different ways. The two groups perceived the other’s system of justice as inconsistent, incoherent and incomprehensible.

Of crimes common to both societies, murder requires special notice. It was conceived of differently by Indian and European and was therefore punished by different processes. In Europe murder was an offence against the state; among Indians it was an offence against the family of the victim. European law demanded the murderer’s life as atonement to the state; Indian custom made his life forfeit to his victim’s family. In Europe, the state apprehended the murderer; among Indians it was the family’s obligation to do so. European observers tagged the Indian custom “revenge” and blathered much about the savagery revealed by it. Yet, as compared to the state’s relentlessness, the tribe provided an institution carefully and precisely designed to stanch the flow of blood. The obligation of blood for blood could be commuted into a payment of valuable goods by the murderer’s own kin-folk to the relatives of his victim. This custom (which had been known centuries earlier in Anglo-Saxon England as wergild) was a widespread stabilizer of Indian societies, forestalling the development of obligatory revenge into exterminating feuds. Although the term feud has been used freely by the condemners of savage society, Marian W. Smith has been unable to find the phenomena properly denoted by it. “True feud,” she remarks, “in its threat of continued violence between particular groups, is surprisingly rare in the New World.”

Europeans understood the wergild custom and used it themselves in their dealings with Indians, but only unilaterally. Europeans would pay blood money to avert Indian revenge for the killing of an Indian, but Indians were not permitted to buy absolution for the killing of a European. In the latter case the Europeans demanded the person of the accused Indian for trial in a European court. In the event of nonapprehension of the suspected culprit, mass retribution might be visited upon his village or tribe. The savagery of revenge, therefore, was simply a semantic function of its identification with an Indian; European revenge was civilized justice.16

The underlying philosophy in Aboriginal societies in dealing with crime was the resolution of disputes, the healing of wounds and the restoration of social harmony. It might mean an expression of regret for the injury done by the offender or by members of the offender’s clan. It might mean the presentation of gifts or payment of some kind. It might even mean the forfeiture of the offender’s life. But the matter was considered finished once the offence was recognized and dealt with by both the offender and the offended. Atonement and the restoration of harmony were the goals—not punishment.

It is this strong, even central, cultural imperative to prevent or deter violent acts of revenge or retribution that runs through all these accounts. Aboriginal societies felt it important that offenders atone for their acts to the aggrieved person and the victim’s family or clan. European society demanded the state punish the offender. In the Aboriginal justice system, once the atonement had been made and the offence recognized, the matter was forgotten and harmony within the community was considered restored. In the European justice system, the offender "pays his debt" to society, usually by going to jail. Rarely is there atonement to the person or persons injured. There is little restoration of harmony within the community.

This form of Aboriginal justice exists, to some extent, in Aboriginal communities to this day. Here is an example of one person’s experience:

In March 1987 the city of Whitehorse hosted The Third Annual Northern Conference. It was convened to examine the delivery and impact of justice services in remote Indian and Inuit communities. One of the sessions explored mediation techniques to see if they might be more appropriate than our adversarial courts. Three participants were selected to form a panel to mediate a fictitious dispute between a young lad and the owner of a store which had been broken into. One of the panel members was Charlie Fisher, an Elder from the Islington Reserve at Whitedog, and Ontario’s first Native Justice of the Peace.

He began by getting rid of the chairs, then the long table which had separated the three panelists from the disputants. Everyone sat in a circle, as equals. He then required two further participants to act as Elders “representing” the two disputants. As he continued, it became clear that it was not only the physical format or cast of participants which differed, but also its process and its very function.

The boy and the store owner never spoke, not even to the panel. There was no discussion whatever about the break-in itself, about the theft and damage, about how each party felt about the other, or about what each might do to set matters straight. Further, the panel would not impose restitution, punishment or any consequence at all. They would not even discuss the issue of consequences.

Once those in attendance understood what was NOT going to take place, there was only one question left: “why, then, is there a panel at all?”

Charlie Fisher then defined the purpose of that traditional forum. It was used to rid themselves of what he called “bad feelings”. Each would be “counselled” by his representative Elder, privately, until his spirit was “cleansed” and made whole again. At convocations of the panel the representing Elder could signify that such “cleansing” had been achieved by touching the peace pipe. The panel would convene as often as necessary until both Elders so signified. At that point, the peace pipe could be lit and passed to all. As far as the community was concerned, that would be the end of the matter. Whether the two disputants privately arranged recompense of some sort was entirely up to them. Both had been “restored to the community and to themselves” the moment the pipe was passed.17

The author, Rupert Ross, is a Crown attorney in northern Ontario. He describes the non-Aboriginal participants as "perplexed" by the demonstration they had just witnessed. There was no "fact-finding," no allocation of blame or responsibility and "no discussion (much less imposition) of consequences." Perhaps, his group surmised, there was little need to do so in such small, tightly knit Aboriginal communities where public opinion carried so much weight. Or maybe a system that doesn’t rely on punishment also doesn’t need "fact-finding" to ensure an innocent person is not punished by mistake.

In the end, the author concluded that "such explanations are superficial in the extreme." The real answer may lie deep within the "basic ethics" of the traditional culture itself. TOP

 

Aboriginal Culture TOP

In trying to describe Aboriginal cultures to non-Aboriginal Canadians, it is important to recognize the difficulty of such a task. Imagine trying to describe Canadian culture to a non-Canadian. Canadian society is not homogeneous; there are many peoples, many cultures and languages, and many regions. Similarly, Aboriginal people are many peoples, cultures and languages in many regions.

Furthermore, any attempt at description will tend to be an over-simplification and will carry the risk of a certain amount of stereotyping. Once that is understood, it is important to realize how culture can influence one’s cultural characteristic, cultural "ethic" or "rule of behaviour." A cultural "ethic" or "rule of behaviour" may be described as a behavioural characteristic or quality that is so ingrained, so prevalent, within an identifiable or specific group of people as to become almost a trait. Again, we warn about the risk of stereotyping.

Aboriginal people, it is important to stress, are not all the same. For instance, the Cree in northern Quebec have a completely different language, culture and society than the Mohawk only a few hundred miles away in southern Quebec. The Cree are patriarchal, which means they trace their lineage, families and clans through the male parent. The Mohawk, on the other hand, are matriarchal and determine their heritage through the female parent. The Cree are a hunting, trapping and fishing society. The Mohawk are an agricultural people. Although both peoples live in the province of Quebec, they are, perhaps, as different from one another in language, culture and social characteristics as the Spanish are from the Norwegians in Europe.

In Manitoba, similar cultural differences exist between the Ojibway and the Chipewyan and between the Dakota and the Metis, and even within a tribe of people, such as the Cree. For example, there are subtle differences in social characteristics between the Swampy Cree of northwestern Manitoba and the plains Cree in Saskatchewan.

Yet, it may be argued, all these peoples share certain characteristics, as well. These similar characteristics are examples of Aboriginal ethics or rules of behaviour. Aboriginal ethics and rules of behaviour are "present in some form in all tribes of North America," according to Dr. Clare Brant, a Mohawk psychiatrist who has studied and written in this area.18

According to Dr. Brant, Aboriginal ethics become most pronounced when contrasted to the behaviours considered "normal" by most Canadians. These behaviours are sometimes explained by non-Aboriginal Canadians in terms of popular stereotypes about Aboriginal people, or worse. From his own profession, he gives this example:

Many general psychiatrists see Native children and adolescents in assessments, and often find them passive, difficult to assess, and not forthcoming. This behaviour, which affects the individual Native child’s attitude and performance in an assessment situation, is understandable in view of the child’s cultural background. The psychiatrist may, at times, misinterpret the behaviour as resistance, passive-aggression, opposition, depression, or withdrawal. The general psychiatrist’s failure to recognize the derivatives of the individual child’s cultural heritage as they affect his behaviour in a clinical situation may result in unperceived errors in diagnosis, in formulation, and in treatment. For example, overuse of antidepressants and the all too frequent diagnosis of personality disorders may occur. This may turn what is intended to be a helpful encounter into one that is not useful or even traumatic for the patient. Such encounters will no doubt also be frustrating for the clinician.19

Dr. Brant’s description of the misunderstandings between doctor and Aboriginal patient is similar to the cultural miscues our Inquiry has heard about for Aboriginal people in the justice system. They often result from a lack of knowledge about Aboriginal people and their cultures. Such misunderstandings can be just as disastrous for an Aboriginal person in the justice system as in the medical system.

When [Aboriginal people] refuse to follow the exhortations of our rules, we judge them as deficient in rule-obedience or, worse still, rule-less. In our ignorance, we have failed to admit the possibility that there might be rules other than ours to which they regularly display allegiance, an allegiance all the more striking because it is exercised in defiance of our insistent pressures to the contrary.20 TOP

 

Cultural Imperatives TOP

A cultural imperative, or rule of behaviour, is a cultural value that dictates the actions and reactions of Aboriginal people to given situations. For instance, in general, Aboriginal people are non-confrontational. Aboriginal people usually will seek to resolve disputes or to make their opinions known to others in ways that avoid direct confrontation. Confrontation violates one of several Aboriginal cultural rules of behaviour that deem the preservation of harmony paramount, rather than personal satisfaction or gain.

While such cultural differences between Aboriginal people and non-Aboriginal people have been noticed and remarked upon by various non-Aboriginal writers for hundreds of years, few people have tried to explore and explain these differences in terms understandable to the general population. Instead, these differences have been explained away in terms of handy stereotypes and vague generalizations, to the detriment of real understanding. The justice system has been no less insensitive and ignorant of these differences than other sectors of society.

Although there is an awakening to the fact that the over-representation of Native people in the jails of Canada may result from cultural conflicts between the Canadian legal system and the Native people, there is still a lack of acceptance by the legal system of the conceptual conflicts faced by Aboriginal people coming before the courts.21

According to Brant, there are at least 10 distinct Aboriginal cultural ethics or rules of behaviour, and perhaps there are even more. He categorizes them under three main headings. Brant calls the first category of Aboriginal behaviours "conflict suppression." The second he calls "projection of conflict" and the third is "humiliating superego."

The individual and group survival of this continent’s Aboriginal Plains, Bush and Woodlands people required harmonious interpersonal relationships and cooperation among members of a group. It was not possible for an individual to survive alone in the harsh natural environment but in order to survive as a group, individuals, living cheek by jowl throughout their lives, had to be continuously cooperative and friendly.22

Brant believes there are four major ethics or rules of behaviour and four lesser ones in the broad category of "conflict suppression" that continue to influence the lives of Aboriginal people today. He says they grew out of the need of extended families, clans, villages or tribes to maintain harmony and ensure survival of the group. TOP

 

Ethic of Non-Interference TOP

One of the most important is the ethic of non-interference. It "promotes positive interpersonal relationships by discouraging coercion of any kind, be it physical, verbal or psychological." It stems from a high degree of respect for every individual’s independence and regards interference or restriction of a person’s personal freedom as "undesirable behaviour."23

The ethic of non-interference is one of the most widely accepted principles of behaviour among Native people. It even extends to adult relationships with children and manifests itself as permissiveness. A Native child may be allowed at the age of six, for example, to make the decision on whether or not he goes to school even though he is required to do so by law. The child may be allowed to decide whether or not he will do his homework, have his assignments done on time, and even visit the dentist. Native parents will be reluctant to force the child into doing anything he does not choose to do.24

This ethic is one of the most difficult for non-Aboriginal people to understand because it often conflicts with their conceptions of "accepted" practice. In European-Canadian society, for instance, children are told what to do, when to do it and what will happen if they do not do it. Advice is offered freely and regularly, whether it is welcomed or not. Children are expected to conform, rather than to experiment, and to learn by rote, rather than by innovation.

The importance of the ethic of non-interference helps to explain the use of stories in Aboriginal societies. If advice is given, it is usually in the form of a story. It lays out a situation with options. The advice is contained in the story and the listener is free to understand it as he or she wants to, and to act or to not act on that advice accordingly.

This rule of behaviour is still strongly evident in Aboriginal communities. Where it once was necessary to ensure the survival of a group, this ethic continues to be functional to maintain harmony within the community. It demands people show respect for other people’s personal privacy. It promotes individual self-reliance and responsibility with assurances that others will not intercede or interfere in the individual’s personal affairs. Finally, it encourages people to make decisions, and accept responsibility for those decisions, starting at an early age. TOP

 

The Rule of Non-Competitiveness TOP

The second ethic Brant describes is the rule of non-competitiveness. It exists to suppress internal conflict within a group by "averting intragroup rivalry." It also acts to prevent the embarrassment "that a less able member of the group might feel" while involved in a group activity. Brant says this ethic often is misinterpreted by many European-Canadians as an inability to compete. However, he says, success or attainment of goals for Aboriginal people stress a more cooperative approach, as opposed to the imposition of one person’s will upon the group, or the attainment of personal success at the expense of group needs.25 TOP

 

Emotional Restraint TOP

One of Brant’s theories concerns the ethic he has called the "exercise of emotional restraint." It is a complement to, and an extension of, the ethics of non-interference and non-competitiveness. It too developed out of a need to control outbursts of emotions that might cause disruption in tightly knit groups or families. However, he warns, it is a double-edged sword.

On the positive side, it promotes self-control and discourages the expression of strong or violent feelings. However, emotions such as joyfulness and enthusiasm are suppressed along with anger and impulses to destructiveness.26

Brant says this ethic may be "problematic" for Aboriginal people in today’s society when "repressed hostility," against distant government bureaucracy, for instance, "often explodes into the open under the influence of alcohol and inappropriately visited upon by innocent bystanders such as a spouse, child or casual acquaintance." It may also lead to problems in dealing with grief from separation or loss. He quotes one study in which "Forty-four percent of the Native people who consulted a psychiatrist ... were suffering from grief reaction of one kind or another."27 TOP

 

Sharing TOP

Sharing is another rule of behaviour exhibited by many Aboriginal peoples. In some instances, it was institutionalized in ceremonies to ensure that no one became too rich or powerful and, conversely, that no one became too poor or too powerless. Such ceremonies included the Potlatch of the West Coast and the Sundance of Manitoba. However, it was, and remains, a daily feature of Aboriginal societies in a less formal fashion. TOP

In Aboriginal times, when this principle originated among Native peoples, group survival was more important than individual prosperity; consequently, individuals were expected to take no more than they needed from nature and to share it freely with others. Of course, this is somewhat akin to the central principle of Marxism and Christianity. Native people however, regard it neither as a political ideology nor as a religious requirement. It was and still is simply a part of the Native way of life. Although the main function was to help ensure group survival in the face of the ever present threat of starvation, it also serves as a form of conflict suppression by reducing the likelihood of greed, envy, arrogance and pride within the tribe.28

These four major Aboriginal ethics or rules of behaviour (non-interference, non-competitiveness, emotional restraint and sharing) form the basis of daily relations within Aboriginal communities. But they work with four supplementary ethics: a concept of time, the expression of gratitude and approval, social protocols, and the teaching and rearing of children. TOP

 

Conflicts Arising from Aboriginal Cultural Imperatives TOP

Aboriginal people have developed their own views and customs, or rules of behaviour, that are sometimes in conflict with those of the dominant society. For example, Aboriginal people have a very different concept of time from that of most other Canadians. It is referred to jokingly by Aboriginal people as "Indian time" or "Metis time." But it is simply an acknowledgement that events will take place when it is the proper time, after the required social protocols have been followed, or as long as they do not interfere with other duties or activities.

[T]he Native person has an intuitive, personal and flexible concept of time. It may have had its origin in an age when the activities of Native people were regulated by the seasons—by the sun, the migratory patterns of birds and animals, and a changing food supply.... Today, the Native concept of time seems less a principle for living with nature and more of a manifestation of the need for harmonious interpersonal relationships. For example, Tom, Dick and Harry may not make it to an 8 pm meeting because they have other responsibilities they are unable to leave because the time is not right. If they have a particular interest in the matter under discussion, the meeting will not be started until they arrive or until some message is received that they are not coming. To start without them might offend these esteemed members of the community.... In another, more social context, it might be rude and inconsiderate to start a dance at a wedding celebration without all the brothers and sisters of the bride and groom being able to take part in the first waltz.29

To illustrate the relevance in the justice system of such cultural differences between Aboriginal and non-Aboriginal people, here is an example provided by a Micmac court worker in Nova Scotia:

Now time is usually divided in the Micmac world according to the positioning of the sun. Now if you are a Micmac person being examined or cross-examined on the witness stand, the lawyer might say, “Well, did you see this happen at seven o’clock in the morning?” And the Native person would answer to me, “Yes, no he would say, “Wej kwap niaq” which means the sun has just risen. And so I would turn around and I would give that statement to whoever was asking the questions. And then the Prosecutor not being satisfied with this answer, would say, “yeh, but ... was it seven o’clock in the morning?” And the Native person would say, “Well, you know the sun had risen.” And simply because seven o’clock in the morning in the summer and seven o’clock in the winter are different in the sense that the sun rises at different times. So he would find difficulty in answering—answering the question. And sometimes he would eventually say, “Yes, it was seven o’clock in the morning” just to get out of that situation.30 TOP

 

Other Rules of Behaviour TOP

There are rules governing nearly every form of social behaviour. There is a rule dictating the proper way to commend another or express appreciation so as not to embarrass that particular person or demean the less-than-adequate accomplishment of another person. There are rules governing proper etiquette or social protocol. "Native society has highly structured and demanding rules of social behaviour. There are rules about everything. Many, however, are specific to individual villages, clans, tribes and bands, a fact that can cause problems, given the ethic of non-interference."31

There is even a rule that defines the proper method of teaching Aboriginal young people or children. Unlike European-Canadians, Aboriginal people teach their young people through example. They allow the children to set their own goals and to learn that which the children feel is important or worthwhile. This method also respects the other rules of behaviour restricting interference and avoiding conflict. This method of teaching has often been misinterpreted or misunderstood by European-Canadians as a sign of poor parenting.

However, it conveys information about the proper behaviour to the young person while it promotes self-reliance and responsibility. It also engenders respect for the rules of society while it reinforces the importance of role models, parents and other people doing the teaching—the elders in the community.

Brant surmises these ethics or rules of behaviour are reinforced within Aboriginal society by two other factors. The first is "the projection of conflict," or the removal of blame to the outside, away from the immediate family or clan and towards some unseen and distant villain. This villain might take the shape of a witch or a monster and originally was used to discipline people by implied threat. "Anger provoked them, so children were taught from a very early age never to engage in angry behaviour. Anger was considered not only unworthy and unwise, but dangerous as well."32

The second factor is the use of teasing, shaming and ridicule as a means of social control to discourage unwelcome behaviour and encourage the maintenance of harmony. On one hand, the use of such humiliation encouraged closeness and kept young people attached to the group, promoting group unity and survival. On the other hand, it drove the more reckless, bold or rebellious away from the group which, again, promoted stability within the group. It also emphasized the use of peer pressure to reinforce the rules of society upon the individual.

Again, we stress that these theories of human behaviour are, as Brant himself warns, "far from complete." They may lend themselves to oversimplification and stereotyping. Brant recognizes this danger and presents them not as confirmed fact, but as theories to encourage debate and to "promote the further demystification of Native behaviour." We do so as well. We present them to illustrate the vast differences in worldviews and in psychological behaviours between Aboriginal and non-Aboriginal peoples.

We do, however, believe that Dr. Brant’s work is valuable as a tool for understanding how the cultural values of Aboriginal people determine their actions in certain situations. This is an understanding that even many Aboriginal people lack. Brant’s findings become even more critical when one considers the impact that non-Aboriginal systems of government, policies and programs have had upon Aboriginal people, due to this lack of knowledge. To a large extent, this same knowledge has determined the manner in which Aboriginal people have reacted to government injustices.

In addition, the suppression of the rights of Aboriginal people to perform certain ceremonies and to adhere to their cultural imperatives has contributed to the social disruption in their communities. This disruption has interfered with the ability of Aboriginal people to deal with the various pressures confronting them. It also has denied them culturally appropriate ways of maintaining harmony and limiting social disruption.

Aboriginal cultures have, and continue to practise, ceremonies which encourage the controlled release of emotions in an appropriate manner. There are "grieving" ceremonies in which Aboriginal people are encouraged to deal with loss and separation. The "shaking tent" and "sweat lodge" ceremonies were used in this manner to "purify" or rid a person of latent hostilities and anger.

Sports, games and social functions allowed individuals to express anger, competitiveness or happiness in socially acceptable ways. There were "healing" circles in which the most deeply felt hurts were explored and dealt with within the context of traditional teachings. There were elders who counselled and advised individuals and the tribe on how to resolve disputes and relieve tensions.

What has been suppressed by laws and other religions in the past are these traditional mechanisms by which Aboriginal people have dealt with personal problems and pressures. Many of these ceremonies were outlawed by governments until very recently. These ceremonies are still dismissed or debased by some people, even today. The disruption of Aboriginal societies, for the most part, has not interfered greatly with such rules of behaviour, but it has interfered greatly with the means by which Aboriginal people maintained personal balance and well-being. TOP

 

Cultural Imperatives and Systemic Discrimination TOP

Until we realize that [Aboriginal people] are not simply “primitive versions of us” but a people with a highly developed, formal, complex and wholly foreign set of cultural imperatives, we will continue to misinterpret their acts, misperceive their problems, and then impose mistaken and potentially harmful “remedies.”33 [Emphasis in original]

It is exactly this misunderstanding that is at the heart of systemic discrimination. The justice system assumes much about the people who appear before it. The system assumes all persons will use the same reasoning when protecting their interests, when choosing their pleas, when conducting their defences, when confronting their accusers, when responding to detailed questions, and when showing respect and remorse to the court. It also assumes that punishment will affect all persons in the same manner.

When the justice system of the dominant society is applied to Aboriginal individuals and communities, many of its principles are at odds with the life philosophies which govern the behaviour of Aboriginal people. The value systems of most Aboriginal societies hold in high esteem the interrelated principles of individual autonomy and freedom, consistent with the preservation of relationships and community harmony, respect for other human (and non-human) beings, reluctance to criticize or interfere with others, and avoidance of confrontation and adversarial positions.

Methods and processes for solving disputes in Aboriginal societies have developed, of course, out of the basic value systems of the people. Belief in the inherent decency and wisdom of each individual person implies that any person will have useful opinions in any given situation, and should be listened to respectfully. Aboriginal methods of dispute resolution, therefore, allow for any interested party to volunteer an opinion or make a comment. The "truth" of an incident is arrived at through hearing many descriptions of the event and of related, perhaps extenuating, circumstances.

Impossible though it is to arrive at "the whole truth" in any circumstance, as Aboriginal people are aware, they believe that more of the truth can be determined when everyone is free to contribute information, as opposed to a system where only a chosen number are called to testify on subjects carefully chosen by adversarial counsel, where certain topics or information are inadmissible, and where questions can be asked in ways that dictate the answers.

Because the purpose of law in Aboriginal society is to restore harmony within the community, not only the accused has to be considered. Other people who have been or might be affected by the offence, particularly the victim, have to be considered in the matter of "sentencing" and disposition.

In the Ojibway concept of order, when a person is wronged it is understood that the wrongdoer must repair the order and harmony of the community by undoing the wrong. In most cases, the responsibility is placed on the wrongdoer to compensate the wronged persons. This concept of order makes the individual responsible for the maintenance of harmony within the society. Restitution to the victim or victims is, therefore, a primary consideration.

The person wronged, bereaved or impoverished is entitled to some form of restitution. In the eyes of the community, sentencing the offender to incarceration or, worse still, placing him or her on probation, is tantamount to relieving the offender completely of any responsibility for a just restitution of the wrong. It is viewed by Aboriginal people as a total vindication of the wrongdoer and an abdication of duty by the justice system.

The accused also may have dependants who are involved in some way. Aboriginal people believe care has to be taken so that actions to control the offender do not bring hardship to others. The administration of justice in Aboriginal societies is relationship-centred and attempts to take into account the consequences of dispositions on individuals and the community, as well as on the offender.

The differences between Aboriginal processes and the processes of the Canadian justice system are profound. The Canadian justice system, like other justice systems in the European tradition, is adversarial. When an accusation has been made against an individual, legal advisers representing plaintiff and defendant confront one another before an impartial judge or jury. Witnesses are called to testify for or against the accused; that is, to criticize or explain the actions of another. Guilt or innocence are decided on the basis of the argument that takes place between legal representatives. Retribution is demanded if the person accused is considered guilty.

The concepts of adversarialism, accusation, confrontation, guilt, argument, criticism and retribution are alien to the Aboriginal value system, although perhaps not totally unknown to Aboriginal peoples. In the context of Aboriginal value systems, adversarialism and confrontation are antagonistic to the high value placed on harmony and the peaceful coexistence of all living beings, both human and non-human, with one another and with nature. Criticism of others is at odds with the principles of non-interference and individual autonomy and freedom. The idea that guilt and innocence can be decided on the basis of argument is incompatible with a firmly rooted belief in honesty and integrity that does not permit lying. Retribution as an end in itself, and as an aim of society, becomes a meaningless notion in a value system which requires the reconciliation of an offender with the community and restitution for victims.

The same contradictions between Aboriginal values and the dominant justice system result in a heavy burden being placed on Aboriginal accused, plaintiffs and witnesses who enter into the "white" justice system. Accusation and criticism (giving adverse testimony), while required in the Canadian justice system, are precluded in an Aboriginal value system which makes every effort to avoid criticism and confrontation. "Refusal or reluctance to testify, or when testifying, to give anything but the barest and most emotionless recital of events" appears to be the result of deeply rooted cultural behaviour in which "giving testimony face to face with the accused is simply wrong ... [and] where in fact every effort seems to have been made to avoid such direct confrontation."34 In Aboriginal societies, it may be ethically wrong to say hostile, critical, implicitly angry things about someone in his or her presence, precisely what our adversarial trial rules require.

Plea-making is another area where the mechanics of the Canadian justice system are in conflict with Aboriginal cultural values. Aboriginal individuals who, in fact, have committed the deeds with which they are charged are often reluctant or unable to plead not guilty because that plea is, to them, a denial of the truth and contrary to a basic tenet of their culture.

Some people have pointed out to our Inquiry that many Aboriginal people have trouble comprehending the "white" concept of guilt or innocence before a court, in terms of their own culture. There is no such concept in Aboriginal culture and so there are no words in their vocabulary for "guilty" or "not guilty." This example comes from the Royal Commission on the Donald Marshall, Jr., Prosecution in Nova Scotia.

Q I was starting to ask you if you could explain to us the ... meaning of the word “guilty” in Micmac.

Francis: There really is no such word as “guilty” in the Micmac language. There is a word for “blame”. So an Indian person who’s not as knowledgeable let’s say in the English language if he were asked if he were guilty or not, he would take that to mean, “Are you being blamed or not?” and that’s one of the reasons I found that Native people were pleading guilty is because they suspect that the question was, “Is it true that you’re being blamed?” and the Native person would of course say, “Yes.” In other words, but the real question being, “Are you guilty or not guilty?” and the answer of course would be “Yes, I plead guilty,” thinking that’s blame. What they neglected to say was, “Yes, I’m guilty that I’m being blamed but I didn’t do it.”35

Similar problems with language exist between Aboriginal people and the justice system in Manitoba. We had this exchange with Art Wambidee, a court worker from the Sioux Valley First Nation:

Q You mentioned as well problems in interpreting some of the words that are used in court. That issue was raised with us before by people in the north talking about the Cree language, that there is no concept for “guilty” or “innocent”. It doesn’t translate into one word. Is that the same thing with your language?

Art Wambidee: It’s the same thing, yes.

Q How would you, if you had to interpret “guilty” or “not guilty” for someone in your language? How would you interpret that? What would you make them try to understand?

A Well, I guess that I’d sort of interpret it, “Did you do that, or didn’t you?”

A final example is the implicit expectation on the part of lawyers, judges and juries that people standing accused before them should show remorse and a desire for rehabilitation. However, Aboriginal cultural imperatives demand that they accept, without emotion, what comes to them. Aboriginal people, therefore, might react contrary to the expectations of people involved in the justice system. In the Aboriginal person’s powerlessness, he or she simply may wait passively, with head respectfully bowed, to receive the judgment of the court. This attitude has been carried over into Aboriginal behaviour within the justice system.

In his effort to honour those pleading his case, he makes every attempt to agree to their requests, (to) give answers that please, and not to argue or appear adversarial.36

Judges and juries can hardly be impartial when they misinterpret the words, demeanour and body language of individuals. Witnesses who refuse to testify, and people accused of crimes who refuse to plead and who show no emotion, are judged differently from those who react in ways expected by the system. Their culturally induced responses are misunderstood, sometimes as contempt, and may result in an unfair or inappropriate hearing and in inappropriate sentencing. To require people to act in ways contrary to their most basic beliefs and their ingrained rules of behaviour not only is an infringement of their rights—it is a deeply discriminatory act. TOP

 

Language Issues TOP

Lawyers, court communicators, family court workers, juvenile workers, Aboriginal community members and other concerned people stressed to our Inquiry the pervasiveness of language problems for Aboriginal people at every stage of Manitoba’s system of justice.

These issues are not merely of language; they go to the heart of our society’s obligation to ensure that people understand their legal rights and obligations, the nature of any charges against them and any legal proceedings affecting their rights. The right of all people to the use of a familiar language, preferably their first language, is not always met. Canadian courts do not automatically provide interpreters for Aboriginal people, nor do enforcement and corrections agencies. An even more fundamental question, beyond this immediate and pressing omission, is whether Aboriginal people understand the concepts behind the language used in the legal system, even when interpreters and translators are used. TOP

 

Understanding Words TOP

On a mechanical level, there are obvious problems when the police, lawyers and the courts conduct business in a language that is not the mother language, nor even perhaps the second language, of the people involved. Translation and interpreter services often are not available. When offered, they may be inadequate or even prejudicial.

On the philosophical level, there is the serious question of whether the legal terms of the dominant society can be translated into Aboriginal languages. Even if that can be done, does the translation actually convey the same concept to Aboriginal people in their mother tongue as it does to European-language speakers?

Mechanical language problems have been identified at every step of the legal process. When individuals are approached by police under what police officers consider suspicious circumstances, they often cannot explain what may be, in fact, innocent situations. They may not understand the reasons for their arrests or the explanations of their rights. Remarks and explanations made in inadequate or broken English or French during arrest, transportation and booking have been misunderstood by arresting officers and used to incriminate some Aboriginal people. As northern paralegal Sylvia Grier told us, "Police reports were not accurate because of an inability of Aboriginal speakers to explain the circumstances to the police."

Aboriginal people who do not speak a dominant language cannot ask to use a telephone or request a public defender, or even ask for help to do so, if there are no translation services provided while they are booked. Translation is not readily available during consultations between the people accused and their lawyers. In the courtroom, according to Chief Philip Michel of Brochet, "by-standers are often sworn in to act as interpreters … [with] no guarantee of proper communication or unbiased translation."

It is obvious that defendants who do not speak English or French, or who do not speak the relevant language well, will be at a disadvantage during courtroom proceedings. It is not so obvious that many Aboriginal people who do speak a dominant language may have a command of that language which enables them to function in most areas of life, but which is not adequate for dealing with formal courtroom language. This problem is not restricted to Aboriginal peoples. Many lifelong, fluent and highly articulate anglophones and francophones cannot deal with "legalese."

It is also apparent to observers that many people do not realize that they are missing or misunderstanding parts of the proceedings. As we learned from our hearings, many are reluctant to admit a language deficiency in public.

A fundamental right of all Canadians in the justice system ought to be the right to use a known language, preferably their mother tongue. Obvious as this may seem, and in spite of the fact that the Charter of Rights and Freedoms enshrines a person’s right to an interpreter, there is no program to ensure that Aboriginal people have access to an interpreter in court, nor are they told they have a right to one. Although there are a number of court communicators working in our courts, their mandate is "to assist Native Peoples in the development of a better understanding of their rights, interests, privileges, and responsibilities in relation to the criminal justice system. It is the role of the Court Communicator to assist Native Peoples through the process and attempt to bridge any gaps which may exist."37 In other words, their job is to interpret cultures, not languages, and their training prepares them mainly to interpret the customs of the dominant society to Aboriginal peoples—not the other way around.

Court communicators in the Manitoba program may provide interpreting services, but only unofficially, "due to a lack of other available resources."38 Interpreting is not part of their role. Local people are frequently hired as court interpreters, but many people see their services as inadequate because they are untrained, not properly qualified, and can give no guarantee of impartiality or neutrality.

Apparently, the only interpreter/translator training program in use in Canada is the one in the Northwest Territories. The program consists of a course and materials prepared for freelance and government interpreters. It is designed to help them understand existing court procedures, language and protocol.

However, translation problems are described within the context of English. The material does not deal with the differing concepts of Aboriginal and dominant society approaches to law and justice. Many of the inadequacies of the Legal Interpreter’s Handbook, the manual prepared for court communicators in the Northwest Territories, are the result of ethnocentricity and cultural misunderstanding by the authors.

The Manitoba Native Court Interpreter’s Manual has been judged by some Cree scholars and linguists to be an adequate beginning to the process of translating legal language into Aboriginal languages. However,

... problems encountered with the Court Manual and with the process of translating and verifying the words requested were all the result of the difficulty of creating a vocabulary for which there is no cultural concept in the language. The vocabulary has to be developed and agreed upon, then taught to the people it will impinge upon.39 TOP

 

Understanding Legal Concepts TOP

There are really two types of misunderstandings that arise from the translation of terms from one language into another. The first is easier to understand: some words simply do not translate directly into an Aboriginal language. Much more difficult and, therefore, more prone to misunderstandings, is the attempt to convey the concepts implied by technical legal words.

Take the word "truth," for example. "Truth" is a key concept in the Canadian legal system and, as such, is considered definite and definable. One swears "to tell the truth, the whole truth and nothing but the truth." There are well-defined sanctions for people whom the court determines are not telling the "truth" or are committing perjury.

On the other hand, the Ojibway understanding of "truth" incorporates the concept that "absolute truth" is unknowable.

When an Ojibway says “niwii-debwe”, that means he is going to tell “what is right as he knows it”. A standard expression is “I don’t know if what I tell you is the truth. I can only tell you what I know.”40

It is as a philosophical proposition that in saying a speaker casts his words and his voice as far as his perception and his vocabulary will enable him or her, that it is a denial that there is such a thing as absolute truth; the best and most the speaker can achieve and a listener expect is the highest degree of accuracy. Somehow that one expression, “w’dab-ahae”, sets the limits to a single statement as well as setting limits to truth and the scope and exercise of speech.41

Truth and knowledge, to an Ojibway, are always relative. Individuals can say only what they have observed or experienced, and are prepared to doubt whether they have done so accurately and correctly. Culturally ingrained habits of respect for others and for other people’s opinions, of doubt concerning one’s own rightness and righteousness, of willingness to be corrected, and of unwillingness to set oneself up as an authority or expert, account for the readiness with which Aboriginal witnesses appear to change their testimony.

An Aboriginal person challenged by someone perceived to be wiser, more powerful or more knowledgeable may agree readily that perhaps the other person is right. The Aboriginal person, in certain circumstances, is open to suggestions that he or she may have misunderstood, misperceived or misheard the events that are under examination.

The proceedings of the Royal Commission on the Donald Marshall, Jr., Prosecution contain an example of the Aboriginal understanding of the relativity of truth.

Q What about the questioning process, the questioning of a witness in the Courtroom, of a Micmac witness?

Francis: That was another area in which I found to be just devastating towards Native people who attempted to defend themselves in that—in almost all cases a Native person who was not that familiar with the English language would work so hard to try to satisfy the person who was asking the questions. If for instance, either a lawyer or a prosecuting lawyer was asking the questions to a native person on the witness stand and was not satisfied with the answer that he or she received, would continue to ask the question by checking a word here or there and asking the same question and the native person would change the answer from, let’s say a “no” to a “yes” or a “yes” to a “no” ... simply because he felt that whatever he was doing, he wasn’t doing it right and he would attempt to satisfy the person asking the questions.

Q Regardless of the truth?

Francis: Regardless of the truth.42

The exchange, odd though it sounds to anglophone ears, illustrates the point that the lawyer or prosecuting lawyer was searching for "absolute truth," a concept the witness’ culture does not accept.

From the time of his or her arrest until sentencing, the "truth," as revealed by the Aboriginal individual, will be relative to his or her perceptions of the situation. This could very well mean many different versions of the "truth": one during police interrogation, one in conversation with lawyer or lawyers, the one known widely in the Aboriginal community and, finally, the one given under cross-examination in court. In the Indian view, at no point would he or she be accused of lying. All the versions would be deemed reasonable in view of what might have happened, and no one would deem it necessary to judge one version more right than the others.

Other concepts embedded in Aboriginal culture and expressed through Aboriginal languages would be interpreted somewhat differently in English. Concepts of time and space, for example, are much less precise in Aboriginal languages, while they are exactly measured and divided into uniform units in English. More specifically, words describing time or distance in Aboriginal languages would tend to be vague, such as "near," "too heavy" or "after sundown," as compared to "three feet," "110 pounds" and "a quarter after 11" in English.

The inability to name an exact time, or estimate a distance or a weight with precision, is due in large part to the irrelevance of these concepts to Aboriginal life. In a courtroom, the persistence of a lawyer in trying to elicit a precise response results in the witness becoming convinced that the lawyer is asking for verification of his or her own point of view.

The Aboriginal witness, when confronted by a question whether the distance was 10, 20 or one foot, is stumped. The information is of no interest to the witness but appears to be of considerable importance to the lawyer. The lawyer is in a position of authority and, therefore, is to be honoured by concurrence with his or her point of view, whatever it might be. So the Aboriginal witness will try to reassure the lawyer that the information is correct.43

Many Aboriginal people are just as vague when it comes to such things as house numbers. An individual knows where home is in terms of how to get there, but may not bother to remember the house number. This very circumstance has resulted in many people being recorded mistakenly by the police as having "no fixed address," thus affecting their prospects for bail or consideration during sentencing. TOP

 

New Concepts—Old Words TOP

Some words can be translated directly from an Aboriginal language into the English language, but they may not convey the same concept. Some concepts are totally foreign to Aboriginal thought and so new words or phrases have to be invented to approximate the meaning. Former court interpreter Barbara Whitford gave this example:

Q What about other phrases that you may have some difficulty or that an interpreter or a person who speaks, say, only Ojibway, would have difficulty understanding an English legal concept. Probation is an example....

Barbara Whitford: Actually, you have posed a very difficult question, as it just happened for me this afternoon and I was unable to be able to say to that woman, in my language, the question that you just asked.

Q The question about probation?

A I could come back and tell you. I need to think about that. I need to seek an older person, perhaps my mother, who might have that language. Are you understanding what I am saying?

Q Yes. So, you don’t have a way of explaining it. You couldn’t explain probation....

A Not right off the bat. As I’m sitting here, no, I cannot answer that, no.

Because most concepts of the dominant justice system differ from those of Aboriginal societies, words used to describe the concepts in an Aboriginal language have had to be newly coined or invented, or explained with words that actually have different meanings. The way that Art Wambidee translates "probation" for an offender is, "it will mean that he’s dragging a rope behind him." Barbara Whitford gave us other examples:

Q It has often been said that in Aboriginal languages, Ojibway and Cree and others, that there is no single word that captures what a lawyer is.

Barbara Whitford: Right.

Q If you were asked to interpret a lawyer, the word lawyer, how would you explain that?

A Well, I have a word for that, for lawyer.

Q What is that word?

A (Indian name for lawyer).

Q And what does that translate back in English meaning?

A Someone who defends you.

Q How about judge; do you have a word for judge?

A I was sitting there this afternoon contemplating that. No, not right offhand, I don’t. But it is along the same lines as what I just said, the person who makes the decision regarding.

Many words used in Aboriginal languages to describe the concepts of the Canadian legal system carry connotations which they may or may not have in English. The Cree term for "arrested" (literally, he or she was "caught") implies a presumption of guilt, as does the Cree word for "accused."

Even if legal proceedings were carried out entirely in Aboriginal languages, there would be problems describing concepts which are wholly Western. In European languages, for instance, "to appeal" is to act in a particular way, but in Ojibway the relevant word is an abstraction which means the "science of appealing," or the "art of appealing." It cannot be used to describe an act. For the word in Ojibway to be given the added meaning of action would be to violate Ojibway grammatical structures and the manner of thought which underlies them.44

Other words have been translated literally from English into Aboriginal languages. The English word "bail," for instance, has been translated into Ojibway and means bail as in "bailing a boat." The Ojibway word itself is unclear until it is put into context. To use the single Ojibway word for "bail," as we use the English word in a courtroom context, would require widespread consultation and acceptance about the word or phrase among Ojibway speakers. Unlike English, Ojibway does not have a body of words with double meanings (homonyms) whose individual meanings are dependent on context.45 The imposed introduction of a homonymic element would be another violation of Ojibway grammar and the worldview it expresses.

Many Ojibway words are imprecise, or perhaps it would be better to say that many words do not describe in detail. For instance, there is no way to distinguish between a defence lawyer and a Crown attorney in a short phrase. To explain the difference between these two kinds of lawyers would require a detailed explanation of the workings of the court in order for an Ojibway-only speaker to understand the concepts.

Finally, the English language and lifestyle are not threatened in North America, nor is change feared. Aboriginal people, on the other hand, are justifiably concerned about the erosion of their cultures and languages, and are understandably less open to incorporating "foreign" concepts and elements into their languages.

A basic problem in using Aboriginal languages in the legal system is that until recently they did not exist in print. Some Aboriginal languages still have not been put into written form. This makes the standardization of words and their meanings difficult, if not impossible, in some cases. The same word in the same language can imply different meanings from community to community and from regional dialect to regional dialect.

If it is determined that Aboriginal languages are going to be used in the courts, then language development activities have to proceed to build a corpus of Aboriginal language terms which are universally understood and accepted with that language group.46 TOP

 

Conclusion TOP

Law has a special meaning to Aboriginal people. The "law," to Aboriginal people, means rules that they must live by and it reflects their traditional culture and values. For instance, the Ojibway worldview is expressed through their language and through the Law of the Orders, which instructs people about the right way to live. The standards of conduct which arise from the Law of the Orders are not codified, but are understood and passed on from generation to generation. Correct conduct is concerned with "appropriate behaviour, what is forbidden, and the responsibility ensuing from each."47 The laws include relationships among human beings as well as the correct relationship with other orders: plants, animals and the physical world. The laws are taught through "legends" and other oral traditions.

Broadly speaking, Aboriginal people share many values with other peoples around the world. Yet, despite these similarities, Aboriginal cultures are vastly different from other cultures in Canada and throughout the world. They are unique and have no other place of origin. Despite this distinctiveness, Aboriginal cultures and ways of life have been assumed by the dominant society to be without value or purpose. Past policies deemed it best that these cultures be stamped out altogether. Failing that, it was decided that Aboriginal cultures would have to melt into the mainstream in the hope they would assimilate and disappear.

Aboriginal cultures and the values they represent have not disappeared. Instead, they have adapted to new times and new situations. They remain vibrant and dynamic today. The rules of behaviour and the cultural imperatives of Aboriginal society continue to determine how an Aboriginal person views the surrounding world, and they influence that person’s actions and reactions with other individuals and with society as a whole.

So do the laws, customs and traditions that have been defined by that culture. They define the concepts of justice in Aboriginal cultures. These laws respect the cultural imperatives that restrict interference and encourage restraint. Their primary purpose is to discourage disruption and to restore harmony when it occurs. They developed in other times and for other circumstances, but they remain powerful and relevant in Aboriginal society today.

We cannot continue to ignore the cultures of Aboriginal people and the laws, customs and values they generate. We cannot keep denying their very existence. To do so would be to compound past mistakes that have precipitated horrific consequences for Aboriginal people. If the justice system in Manitoba is to earn the respect of Aboriginal people, it must first recognize and respect their cultures, their values and their laws. TOP

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