Lost in Translation? Oral History in the Canadian Judicial System

From Recognition to Reconciliation, 2016

Are aboriginal rights historical rights-rights that gained their basic form in the distant past? Or are they generative rights-rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 1 provides little guidance on the point, referring ambiguously to Aexisting aboriginal and treaty rights@. 2 In the Van der Peet case, 3 decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court=s reasoning reveals, this approach left much to be desired. In his majority opinion, Chief Justice Antonio Lamer holds that s. 35(1) is animated by two main purposes: recognition and reconciliation. 4 With respect to the first, he argues that the doctrine of aboriginal rights exists because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact that distinguishes aboriginal peoples from all other groups in Canadian society and mandates their special legal and constitutional status. So a major purpose of s. 35(1) is to recognize the prior occupation of aboriginal peoples. 5 However, recognition is not the sole purpose of the section, which also aims to secure reconciliation between indigenous peoples and the Crown. Lamer C.J. notes that the essence of aboriginal rights lies in their bridging of aboriginal and non-aboriginal cultures, so that the law of aboriginal rights is neither entirely English nor aboriginal in origin: it is a form of intersocietal law

This article draws on Kociumbas' approach to inter-cultural historical debates to argue that the context of colonisation needs to be invoked in understandings of the resilience of Indigenous laws and societies and the instigation of inter-cultural justice mechanisms. Such a context gives meaning to both the strength and vulnerability of these mechanisms. This is illustrated through an examination of the operation of the Northern Territory's Warlpiri and Yolŋu laws, which draws on the perspectives of Elders in these societies, and the inter-cultural mechanisms of Law and Justice Groups and Community Courts. This research is grounded in historiographical literature, fieldwork observations, empirical evaluations and law reform in relation to these Northern Territory inter-cultural justice arrangements.

Droits et culture, 2023

The various procedures that constitute the repertoire of traditional Australian Aboriginal justice can be organized, on the formal level, around three characters, that is: symmetry, mode of designation and moderation. All three criteria correspond to social dimensions. Asymmetry expresses guilt, while symmetry expresses a situation where it has not been acknowledged. The mode of designation reflects both the individual or collective nature of the accused party and the willingness, if necessary, to circumscribe the effects of the legal proceedings. Moderation, finally, highlights a general principle of Australian law, that of modulation: according to it, the theoretically strict compensation for damages (“an eye for an eye, a tooth for a tooth”) is either lightened – in particular, towards a moderate procedure – or, on the contrary, aggravated, depending on the social relations prevailing between both parties. This approach also makes it possible to understand how war, which in Australia is mainly, if not exclusively, of a judicial nature, derives from the feud, of which it is an unbridled modality.

2000

This book sets out to explore through its contributors the following questions: How can we render justice to indigenous people, and 'morally rehabilitate[ ]' (p. 3) those state projects that began in colonial occupation. The solution, the contributors argue, involves a re-creative act, one that not only overhauls the institutions and power structures of the dominant state and society, but also requires us to revise the way in which we think about political life. The volume brings together authors of different backgrounds, theoretical interests, and regional knowledge, and the contributors include both established figures and newer voices in the field. The editors juxtapose the experience and insights garnered from different regions F primarily Australia, Canada, New Zealand and the United States F and put these contributions within an overall frame that reflects the main markers of political legitimacy in the contemporary era F those of sovereignty, identity, and democracy. For many of the contributors, one of the major obstacles in addressing indigenous claims is a lack of imagination on the part of political practitioners who have become attached to limited conceptions of sovereignty, unity, nationality, jurisdiction, etc. Once we learn to be more flexible in our expectations, they argue, it will be possible for indigenous and non-indigenous peoples to live alongside one another in a legitimate and mutually rewarding way F or at least to live alongside one another in pursuit of these objectives. One of the narrow concepts we need to dispense with, for example, is the idea that there is a once-and-for-all solution to the question of indigenous status and rights. Instead, authors such as J.G.A. Pocock and Jeremy Webber recommend that we adjust to the idea that the terms of coexistence should be born of mutual negotiation and that they should be subject to ongoing renegotiation. At one point in the book, Pocock recalls joking that the indigenous and non-indigenous peoples of New Zealand could both consider themselves 'peoples of the ship'. It seems that the direction envisioned by Pocock and others in the volume would involve multinational or multicultural populations becoming 'peoples of the table' F committed to a life of perpetual negotiation concerning the relationship of the state and indigenous populations.

Commonwealth Journal of Local Governance, 2021

Part 1 of this article explored the relevance of the United Nations Declaration on the Rights of Indigenous Peoples to the Aboriginal and Torres Strait Islander peoples of Australia, particularly the key principles of self-determination and free, prior and informed consent; how the international human rights framework applies in Australia; and Australia's lack of compliance with it. Part One concluded by discussing the Uluru Statement from the Heart, presented to all the people of Australia in 2017, and how it marked a turning point in the struggle for recognition by Australia's Indigenous peoples. Part 2 explores recent developments since the release of the Uluru Statement, especially at sub-national levels, in relation to treaty and truth-telling. It draws some comparisons with Canada and New Zealand, discusses the concept of coexistence, and presents a set of Foundational Principles for Parity and Coexistence between two culturally distinct systems of land ownership, use and tenure. Wensing Indigenous peoples' human rights CJLG December 2021 134 Crown. Indeed, coexistence is now deeply embedded in Aboriginal peoples' perceptions of how those systems should interact with each other (Howitt 2006, p. 64; Brigg and Murphy 2011, p. 26). They seek coexistence on equal terms between the two systems of law and custom, not one always prevailing over the other. There are two laws. Our covenant and white man's covenant, and we want these two to be recognised… We are saying we do not want one on top and one underneath. We are saying that we want them to be equal (David Mowaljarlai, Elder, Ngarinyin people, Western Australia, 1997). 2 First Nations peoples are clearly not satisfied with the form of coexistence introduced by the High Court of Australia in Wik Peoples v State of Queensland. 3 It predicated recognition of native title on the basis of "remnant possibilities" (Walker 2015, p. 19) left after priority was given to the Crown's land tenures, merely because the two sets of rights and interests could not be exercised simultaneously (Strelein 2009, p. 35). According to Howitt (2019, p. 7) "coexistence is foundational in the ongoing challenge of recognising, respecting and accommodating human diversity". People and cultures all bring different sorts of claims, relationships and understandings to the same lands and spaces, and with each other, and all of these factors have implications for just, equitable and sustainable decision-making about ownership, occupation and use of land (Howitt and Lunkapis 2010, p. 109). Application of this concept of coexistence demands that we confront the realities of our mutual responsibilitiesthose of colonial-settler societies and Indigenous societiesfor land justice: "responsibilities that arise from living together in shared spaces that demand an unsettling of deep colonial power relations" (Porter and Barry 2016, p. 19). It also requires "an acceptance of multiple and overlapping jurisdictions" where our "plural relations to and governance of place all have relevance and standing" (Porter and Barry, pp. 5-6). Furthermore, coexistence is about a "mediation on discomfort" (Watson 2007, p. 30), in that it means "acknowledging uncomfortable questions" about how lawful Australia's sovereign status is and how Australia established its legal and land administration systems which Brennan J in Mabo (No. 2) held "cannot be destroyed" or the "skeletal principles of which cannot be fractured". 4 Establishing a mutually respectful coexistence with respect to property in land between First Nations peoples and the Crown involves challenging the power asymmetry between the parties, respecting the parity of two distinctly different approaches to land ownership and governance, and negotiating their interaction through agreements on matters of mutual concern (Wensing 2016, p. 51). It must include

Indigenous LJ, 2003

First Nations Development Institute: Exploring Native Justice, 2023

In this essay, Valandra reflects upon the differences between tribal and settler perspectives on justice. Specifically, he explores the meaning of justice among his own people, the Očhéthi Šakówiŋ Oyáte. He warns that colonization has distorted current understandings of justice in tribal society and emphasizes the importance of adopting a “responsibility-based” rather than a “rights-based” approach to Native justice.

Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making, 2021

SSRN Electronic Journal, 2014