Living legal traditions: Mi'kmaw justice in Nova Scotia.

Author:McMillan, L. Jane

The Royal Commission on the Donald Marshall, Jr. Prosecution remains the most important public inquiry into the relations between First Nations peoples and the criminal justice system in the history of Nova Scotia. The Commission's 1989 Report called for the creation of a "Native Justice Institute" to, inter alia:

  1. Channel and coordinate community needs and concerns into a Native Criminal Court;

  2. Undertake research on Native customary law to determine the extent to which it should be incorporated into the criminal and civil law as it applies to Native people;

  3. Train court workers and other personnel employed by the Native Criminal Court and the regular courts;

  4. Consult with Government on Native justice issues;

  5. Work with the Nova Scotia Barristers Society, the Public Legal Education Society and other groups concerned with the legal information needs of Native people; and

  6. Monitor the existence of discriminatory treatment against Native people in the criminal justice system.

    The "Mi'kmaq Justice Institute" was founded in 1996 to implement this Recommendation. It closed within three years.

    The termination of the Mi'kmaq Justice Institute created a significant gap in support for Indigenous peoples encountering the Canadian criminal justice system. It critically fettered both the development of Indigenous customary law practices and their substantive incorporation into all areas of settler law. Responding to the pressing and immediate needs of the community, the "Mi'kmaw Legal Support Network" emerged from a youth-focused Aboriginal restorative justice program into a court worker service provider. Today the Mi'kmaw Legal Support Network is a stand-alone justice service that provides court worker, customary law and victims services programs. Mi'kmaw communities increasingly seek access to justice services that are relevant to their social, political and cultural rights under treaty, customary, constitutional and Charter protections. Although hobbled by severe financial constraints and only modest receptivity by the Canadian justice system to Indigenous legal principles and practices, the Mi'kmaw Legal Support Network has innovatively worked to meet the many demands of those who seek its assistance.

    The Truth and Reconciliation Commission very recently implored "the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples". Further to this "Call to Action", this paper will examine the intersection of Mi'kmaw legal traditions with the Canadian justice system through the lens of the Mi'kmaq Legal Support Network and provide an analysis of its successes and challenges.

    The realities of colonization and assimilation driven policies continue to resonate in the Canadian legal system perpetuating injustices within Indigenous communities and must be renounced. Canadian society has a responsibility to develop and align its justice system to reflect and support Indigenous legal traditions that offer powerfully beneficial practices for redress, reconciliation and self-determination. Decolonization requires that law be transformed from a tool of oppression and dispossession into a forum where Indigenous peoples' rights and dispute resolution practices are fully embraced. This transformation must occur at every level in the administration of justice, including legal education to facilitate the increased use of restorative justice processes and other initiatives relevant to Indigenous sovereignty.


    Donald Marshall Jr.'s wrongful conviction and life sentence for a murder he did not commit in 1971 exemplified the profound systemic discrimination experienced by Indigenous peoples as they encountered the Canadian justice system. The findings of the Royal Commission on the Donald Marshall, Jr. Prosecution (1989) generated 82 recommendations to correct systemic faults in the administration of justice which, when adopted, significantly transformed the criminal justice system in Nova Scotia and across Canada. For example, an independent public prosecution service with a comprehensive prosecutorial policy and best practices aimed at avoiding any further wrongful convictions was created in Nova Scotia in 1990 through recommendation #35. Nationally, through recommendation #39, criminal law procedure was changed through an amendment to the Criminal Code to address the flawed regime of disclosure in order to ensure exculpatory evidence is fully and timely disclosed. The Marshall Commission noted that the failure of disclosure was an important contributing factor to the miscarriage of justice which had occurred, and which led the Commissioners to state that, "anything less than complete disclosure by the Crown falls short of decency and fair play." (1)

    The Supreme Court of Canada in R v Stinchcombe identified the common law right protected in s 7 of the Canadian Charter of Rights and Freedoms as a principle of fundamental justice and concluded that the Crown bore a constitutional duty to disclose all fruits of the investigation that are not clearly irrelevant or subject to the Crown's right to withhold privileged information and/or time the release of particular items of disclosure. In reaching the conclusion that a failure to disclose undermines the accused's right to make full answer and defence, in this very important Charter case, the Court relied directly upon the Marshall Commission report and its recommendation for an extensive regime of disclosure. (2)

    The Marshall Commission also confirmed that the Mi'kmaw have distinct cultural understandings and customary law practices by identifying in recommendations #20 and #21 the need for a community-controlled "Native Criminal Court" and a "Native Justice Institute" to provide holistic Indigenous approaches using customary law principles as an alternative to the adversarial justice system. (3) The Commission suggested wrap around services that would enhance Mi'kmaw jurisdiction in enforcement, diversion, mediation, sentencing, probation and aftercare, and in the application of Indigenous legal traditions. The Commission also recommended an indigenization of the Canadian justice system through judicial appointments, the recruitment of Indigenous police officers and lawyers, and specialized admission programs to law schools. (4)

    Using the Marshall Commission's report as a negotiating tool to bring about social change in their communities, Mi'kmaw leadership mounted a campaign asserting their Aboriginal rights to administer justice on their own terms to better reflect their unique circumstances, values and customary legal teachings. Mi'kmaq political organizations under the leadership of the Union of Nova Scotia Indians, along with Confederacy of Mainland Mi'kmaq (two tribal councils representing 13 First Nation communities), Grand Council (traditional governing body), and Native Council of Nova Scotia (representing off reserve and non-status), the Nova Scotia Native Women's Association and the Mi'kmaw Native Friendship Centre, had to work together, exchange knowledge and collaboratively design the future of Mi'kmaw justice. The Marshall Commission made real the racism many Mi'kmaw experienced and validated their resistance against systemic discrimination. It was an empowering turning point, and the Mi'kmaw were invested in developing a justice system that could meaningfully manage disputes by relying on concepts of collaborative and restorative justice employed by their ancestors for thousands of years.

    The momentum for nation rebuilding and breaking of colonial attitudes had solid foundations in the public consciousness, legal and otherwise, as a result of the Marshall Commission. A key argument for the implementation of community-based justice as essential in the recognition and implementation of treaty rights and in the development of self-government was important in unifying often divisive political stances amongst the various interest groups. This unification has manifested in Mi'kmaw juridical discourses and governance practices ever since as it became clear that everyone wanted significant changes to the adversarial justice system and access to dispute management processes that better reflected their cultural principles and customary laws.

    The Mi'kmaw conceded that it was inevitable that they will continue to interact with the Canadian justice system and committed to working with federal and provincial governments to address the needed changes to the criminal justice system. They welcomed efforts to indigenize the system, but cautioned, "[a]n indigenization of the present system will only serve to improve the administration of a non-Mi'kmaq form of justice, law enforcement and incarceration upon the Mi'kmaq." (5)

    Over the past quarter century since the release of the Marshall Commission's report, a number of important justice ventures were initiated in Mi'kmaw communities. Pilot projects and government sponsored programs ranging from efforts to indigenize criminal court services, to court worker programs, from creating dispute management strategies using customary law to exploring options for control over resource regulation, from community assisted parole hearings to culturally aligned corrections programs, from crime prevention initiatives to programs of justice as healing and Aboriginal victims services. (6)

    To implement the Marshall Commission's recommendations and establish a Mi'kmaw justice system, a Tripartite Forum, based on Marshall Recommendation #22 was formed in March 1991, and a sub-committee for justice started in May of that year. The forum, modeled on the Ontario Indian Commission, was to use mediation to resolve unsettled issues relating to justice between three parties: the Mi'kmaw, Nova Scotia, and federal governments.



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