Justice system may be part of self-government

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Justice Minister Allan Rock has been making noises, of late, in support of a separate system of justice for Aboriginal peoples. He said it may have to be considered as part of the inherent right of self-government.

The Canadian Bar Association has no formal position on whether a separate system would be in the best interest of Canada. However, it has tabled a discussion paper, originally intended for the Royal Commission, outlining how such a system might work, said Vina Starr, a Native lawyer and chair of the Aboriginal Law Section of the association.

Starr identifies four sources of law making authority for Aboriginals out of which an Aboriginal just system might grow. These authorities begin with the statutory sources like the Indian Act and the Metis Settlement Act, she said. The second authority is treaties, specifically the six modern day treaties like the James Bay and the Northern Quebec Agreement and more recently the Nunavut Settlement Agreement.

The third source of lawmaking authority is Canadian Common Law, or family

law, established in the late 1800s, which recognizes an Aboriginal government's right to sanction marriage, divorce and adoption. The fourth source is Section 35 of the Canadian Constitution which was designed specifically to protect Aboriginal and treaty rights.

To a certain extent a separation of the justice system already exists, Starr said. And in this regard the individual Aboriginal communities would have to determine from which source of power their justice system would derive.

The Mohawks in Kahnawake have established their own court system derived from statutory sources, specifically the Indian Act, Starr said. The Teslin-Tlingit in the Yukon have a functioning justice system based on common law and Section 35.

The Teslin-Tlingit have based their justice system on the traditional clan system, Starr said. In this system, the motivating principle is to restore the victim of an offence to the position he enjoyed before the offence occurred, said Starr. It also attempts to seek ways to restore the offender in the eyes of the community and to help him become a contributing community member.

"All Aboriginals seek to understand why the offender is out of harmony with the community," Starr said. This underlying principle diverges from the Victorian system of justice which emphasizes punishment.

While the CBA has no formal position on a separate Aboriginal Justice System, Starr does.

"We are one country and in order to survive we need a common unifying factor."

Starr said the Criminal Code must prevail and specifications must be enforced throughout the nation. But minor offences, or what would be considered summary convictions resulting in lesser jail terms, should be transferred to the community. The community should have jurisdiction over all private matters, including family and marital issues, estate matters, property offences and offences against the person.

The bottom line is Aboriginal people want to take control of matters concerning peace, order and good government. But because of limitations on resources, they may have to leave the larger issues, like national defense, and large-scale drug trafficking to Canada.