Abstract: This article provides some reflections on "indigenous justice systems" and begins a dialogue on harmonizing these systems with Canadian laws, whether constitutional, civil or criminal.

Introduction

Our problem, of course, is that "culture" is something other people have—to our selves, our own culture is usually invisible. We tend to assume that "our way" is founded in universal principles. It is difficult for us to deal with "other ways" in their own terms, and we generally try to broaden our own framework to incorporate differences, rather than seeing if our principles can be incorporated into the framework of others.

Thinking about "indigenous justice systems" is no different. We consider systems arising from other cultures to be acceptable so long as they meet "certain principles of fundamental justice." Using the "western model" as our framework, we start out by assuming there will be appointed adjudicators, and we expect the adjudicators will be independent of the governing body and enjoy sufficient tenure to promote independence.  We acknowledge there will be cultural differences in the adjudicator’s views, but we see the adjudicator as being the essential norm, and we assume procedural rules and rules of evidence used in the "western model" would apply in proceedings. Within this "universal" framework, we say, people may apply their own unique cultural values.

When an indigenous justice system operates in harmony with a western justice system, compromise and balance are required to accommodate differing views, traditions and, even, expectations as to what a "justice system" is able to accomplish. If one party arrives at the table with preconceived notions of what is "universal" and what is merely "cultural," accommodation may be difficult to achieve. When one party’s culture has a background that might lead it to "legal imperialism," the task is even more difficult.