The following table demonstrates the conflict
between Aboriginal and non-Aboriginal values in a court
The "Traditional" Model
Adversarial. Two differing parties argue a defendant's
guilt or innocence, or to declare a winner and a loser in a civil case.
Focus is on one aspect of a problem that is discussed through
adversarial fact-finding. Interaction between parties is minimized and
remains hostile throughout.
Non-confrontational, multi-partied; primary focus on
resolution, reconciliation, healing, peace.
Guilty or Not Guilty?
Was I involved?
Right against self-incrimination. Not dishonest to
plead "not guilty."
It is dishonest to plead not guilty if one has been
involved in the offense. Obligation of accused to verbalize
|| A civic duty.
|| Reluctance to be confrontational, especially in the
presence of the accused..
|| Tell the "whole truth."
|| It is impossible to know the whole truth. We know only
what we know.
|| Only certain people are called.
|| Everyone is free to have their say. Attempt to give
answers that please counsel.
| Eye Contact
|| Maintaining eye-contact indicates truthfulness.
|| Eye contact with a person of authority is a show of
disrespect or aggression.
|| Show of remorse, desire for rehabilitation may
|| Accept what you have coming to you without showing
|| Your debt to society is paid.
|| Your debt is still pending. Offenders remain
accountable and responsible for change.
| Function of Justice
|| Punishes deviancy, protects society.
|| To heal the offender. Restore peace and harmony to the
community. Reconcile the offender and victim and families.
| System Authority
|| Hierarchical, vertical authority, with decision-making
limited to a few.
|| Level, involving entire community in decision-making.
|| Rehearsed, stylized.
|| fluid, spontaneous. Open talk essential to resolve
|| Native and English.
|| Written, statutory, technical, search for "loopholes."
|| Oral, based on values and "what’s right."
|| Separation of Church and State
|| Spiritual realm, ceremony, prayer integral to life.
Restoring spirituality and cleansing one's soul are essential to the
healing process for everyone involved in a conflict.
|| Adversarial, conflict-oriented.
|| Builds trusting relationships to promote resolution
|| Behaviour is isolated, freeze-frame acts.
|| Problem is seen in its entirety, contributing factors
| Approach to process & solutions
|| "Time is money."
|| No time limits. Long silences, patience are valued.
Inclusive of all affected individuals and those who can help solve
|| By strangers.
|| Representation may include extended family members.
|| Focus on individual rights.
|| Focus on victim and communal rights.
|| Prescribed by state, removes offender from community.
|| Community has voice in determining sanctions needed to
restore relationships. Offenders remain an integral part of the
community with an important role in defining the boundaries of
appropriate and inappropriate behavior and the consequences associated
|| To "society."
|| To victims, community. Apology is reciprocated by
forgiveness. Reparative process makes things right for oneself and those
affected by the offender's behavior. It is essential for the offender to
make amends through apology, asking forgiveness, making restitution, and
engaging in acts that demonstrate a sincerity to make things right.
| Fundamental philosophy
|| Retributive. Criminals should suffer for their actions
and deserve to be punished.
|| We are part of a whole. If something is wrong with one
part, the whole needs to be healed. Everyone involved with persons in
conflict or with a problem are part of a circle of justice, with
everyone focused on the centre: the underlying issues that need to be
resolved to attain peace and harmony for the individuals and the
| Fundamental style
|| Adversarial, punitive, guided by codified laws and
written rules, procedures, and guidelines.
|| Restorative, reparative, unifying, healing, guided by
values and fairness. Crime is viewed as a human error that requires
corrective intervention by families and elders or tribal leaders.
| Victims, Future
|| Reduction in future crime not correlated with justice. Debt
is paid to "society," little reparation to victims.
|| The process should prevent future crime; victims
should receive full reparation.
|| Punishment is used to appease the victim, to satisfy
society's desire for revenge, and to reconcile the offender to the
community by paying a debt to society.
|| Reconciliation promoted by conduct. Revenge seen as
immature and counter-productive to reconciliation. Process heals damaged
personal and communal relationships. The victim is the focal point, and
the goal is to heal and renew the victim's physical, emotional, mental,
and spiritual well-being. Offender makes deliberate acts to regain
dignity and trust, and to return to a healthy physical, emotional,
mental, and spiritual state.