Writing in the case R. v. Gladue, 1999, Justices Cory and
Iacobucci noted: "In Bridging the Cultural Divide…the
Royal Commission on Indigenous Peoples listed as its first
‘Major Findings and Conclusions’ the following striking yet
representative statement: ‘The Canadian criminal justice
system has failed the Indigenous peoples of Canada---First
Nations, Inuit and Métis people, on-reserve and off-reserve,
urban and rural—in all territories and governmental
jurisdictions. The principal reason for this crushing
failure is the fundamentally different world views of
Indigenous and non-Indigenous people with respect to such
elemental issues as the substantive content of justice and
the process of achieving justice."
One of the most important distinctives of Indigenous
systems of law is the fundamental motivators for ethical
behaviour. For example, in Western culture the notion of
God, along with the concomitant doctrines of judgment have
played a key role in the development of its worldview, and
both have philosophically and theologically been connected
to ethical decision-making. These foundational concepts are
largely absent from traditional Indigenous systems of law,
at least in a form that Westerners would understand.
Indigenous systems are based on the imperatives deriving
from being embedded in a ‘natural’ system that makes
This means tribes may have had sophisticated notions of
gods and supernatural beings, but that these figures did not
motivate ethical culture. Some did not have these notions at
all, variety characterizes the remainder. What this study
has found is that in the Indigenous context, no august being
demanded obedience to an absolute law; nor was there a being
who was responsible for condemning those who did not obey.
Rather the notion was that going against this enlarged sense
of nature/supernatural would inevitably lead to negative
consequences. It might better be characterized as: you and
your society will only get out of nature’s system what you
put into it, a ‘natural’ justice system exists in the world.
One went against this natural system at his or her peril.