Navigating through narratives of despair making space for the Cree reasonable person in the Canadian justice system.

Author:Friedland, Hadley
 
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  1. Introduction II. The Reasonable Cree Person III. A Logical Starting Point IV. The Cree Legal Tradition as a Reasoning Process V. Narratives about Violence against Indigenous Women and Children A. The Media Narrative B. State Law's Narratives C. The Trauma Narrative VI. Spaces for Indigenous Laws in the Canadian Justice System A. The Supreme Court's Gladue Principles and Directives B. Current Access to Justice and Community Justice Initiatives for Aboriginal People C. Challenges and Critiques of Community Justice and Healing Programs D. Incommensurate resources and responsibility E. Lack of Accountable and Transparent Decision-Making Processes F. Romanticization and Essentialization of Tradition and Culture VII. Safety First? VIII. The Reasonable Cree Person's Place in the Current Justice System. IX. Restarting the Conversation: Recovering Indigenous Legal Traditions X. Conclusion We [settlers and descendants] came up as Chapter 15 of the story. A little too early perhaps. (1)

  2. INTRODUCTION

    In the Cree language, many words assume or require a response. For example, when greeting someone, you say "Tansi" This does not translate into "hello," but rather closer to "How are you?" The response is "Manando" (I am well). The flow and assumptions of conversation embedded in the Cree language reminds us speech always occurs in relation to others. When you speak, it matters who is listening, what they hear and how they choose to respond or not respond. Indifference and disengagement are the most effective forms of silencing. If no one is listening, you can speak all you want, and still be voiceless.

    Indigenous laws exist. After centuries of being absent in mainstream Canadian legal and political thought and practice, there are increasing calls for and interest in recovering and revitalizing Indigenous laws, and using them in more formal and explicit ways. (2) While there are ongoing challenges there are also cogent methods Indigenous legal scholars can use to ascertain and articulate Indigenous laws from an internal point of view. Legal scholars can engage with Indigenous legal traditions, using structured methods to do so respectfully and robustly. We can adapt and apply basic skills learned in law school to approach, analyze, and organize Indigenous legal principles in accessible and transparent frameworks, deepen our understanding of background or meta-principles, and develop resources that concretely support Indigenous communities to apply their own legal principles in more formal and explicit ways today. (3) For the past several years I have worked deeply with substantive Indigenous laws from a legal academic standpoint, in partnership with Indigenous organizations and communities across Canada. (4) The results of this and other research demonstrate that, while there is lingering damage from colonialism and decidedly uneven ground, Indigenous legal thought and practice clearly persists. (5) With hard work, the rich normative resources from Indigenous legal traditions can be accessed, understood, and applied today. (6)

    However, this article is not about Indigenous laws. Rather, it is about a haunting question: Does any of this matter? Is there space, in the day-to-day reality, and in the imagination of contemporary Canada, for Indigenous laws to be revitalized, practiced, and used, within recognized and resourced justice systems and legal institutes, as the Truth and Reconciliation Commission (TRC) has recently called for in their final report on the Indian residential schools in Canada? (7) This will require space for Indigenous legal thinking to take root in a public and explicit way, not just for isolated elements, disconnected practices, (8) or vague superficial panindigenous "values." (9)

    In other work, I have looked closely at substantive Indigenous laws, primarily focusing on Cree laws. (10) In this article, I examine the broad societal context in which Indigenous laws exist today. This context includes iterative "narratives of despair," perpetuated through the mainstream media, the legal system, and even the political narrative of trauma that aims to push back against these. These narratives of despair contribute to maintaining the intractable conflicts, violence, and conditions of vulnerability for Indigenous people. I introduce a representative figure of Cree legal reasoning--the reasonable Cree person, drawn from logical premises and the findings in my research set out in the AJR Cree Legal Traditions Report and the Aseniwuche Winewak Justice Project Report. (11) Through this figure, I review the current media, legal and political narratives, as well as the spaces within Canadian justice system with potential for Indigenous laws to be rigorously and transparently applied, as well as the false dichotomy between safety and healing. I conclude that intellectual work is needed to expand our narratives or to move beyond these before these laws can be applied. We need serious and sustained engagement with Indigenous legal traditions. We non-Indigenous people need to listen better.

  3. THE REASONABLE CREE PERSON

    So many societal and academic stories about Indigenous peoples start in the wrong place. (12) The justification for creating space for Indigenous laws to address violence and vulnerability within the criminal justice system tends to start with the massive failure of the justice system in relation to Aboriginal peoples, both in terms of over-incarceration and under-protection. (13) These heartbreaking, terrifying, and demoralizing "two sides of the same coin" are very real. (14) There is a long and continuing history of misunderstandings and reasonable distrust generated by colonialism, systemic and individual racism, cultural differences, entrenched poverty, and social dislocation. I wholeheartedly agree that the "imposition visited upon Indigenous people as part of colonization" and "coercive nature of that encounter" that have "impeded Indigenous peoples' ability to develop and express their distinctive understandings" give us, as Jeremy Webber says, "reason to make space." (15) Yet I wonder about the unintended effects of giving such pride of place to the need for amelioration of relatively recent social issues, often with a gloss of 'cultural difference.' Why don't we focus on what must have been, as a matter of logic alone, a long history of successful (or at least adequate) Indigenous social ordering, including legal resources for responding to the universal social and human issues that all laws address?

    While the state justice system creates or permits spaces for Indigenous law, the spaces it allows don't seem to ameliorate effectively the systemic and background issues or their impacts. A simply immense amount of studies and inquiries have looked at this issue. (16) For a very long time, we have known that, statistically, Indigenous people are more likely than non-Indigenous people to be victims of crime, especially violent crime and spousal assault. (17) According to a comprehensive study by the RCMP, there were 1017 police-recorded incidents of Indigenous female homicide victims and 164 unresolved files of missing Indigenous females between 1980 and 2012 in Canada. (18) Violence against women is pandemic, yet Indigenous women are three times more likely to be violently victimized than their non-Indigenous counterparts. (19) While homicide rates for non-Indigenous women have decreased, they have increased for Indigenous women over the same time period in Canada. (20)

    Indigenous people, including women and youth, are over-represented in prison, and are considered higher risk to reoffend and have higher needs. (21) In 2001, Indigenous women accounted for almost one-quarter of female inmates. In 2014, the Office of the Correctional Investigator's report stated that the Aboriginal inmate population is "growing rapidly" (increasing 47.4% since 2005). (22) In 2015, the same office stated that the Indigenous population has increased 37.3%. Indigenous women now make up 33% of the total inmate population under federal jurisdiction, representing an increase of 109% between 2001 and 2011. (23)

    Napoleon has cautioned that 'narratives of despair' about the current plight of many Indigenous peoples risk foreclosing-or rendering invisible and unexamined--other narratives within both state and Indigenous societies and legal traditions. (24) The reality today is that no legal or other tradition stands alone. We are all exposed and affected by the narratives of others. The Canadian state exists as a massive social fact that is not going anywhere. Given that the state maintains a monopoly on the legitimate use of coercive force, any Indigenous justice process addressing criminal law matters will need to be negotiated and harmonized with state laws as well as require cooperation and resources from state legal actors.

    In the past six years, I have addressed many audiences, academic and nonacademic, Indigenous and non-Indigenous, and argued that we need to shift our assumptions in order to recognize, like Borrows, that Indigenous people are reasoning people in reasonable legal orders. (25) There are only so many times you can say this out loud and observe this is actually a new realization for most, before you feel a deep sorrow and something close to rage, even as a non-Indigenous person. The weight of radical absence, (26) the immensity of the erasure, denigration and dehumanization hits you. How can this still be a necessary shift in 2016? Yet it clearly is. There is still so much "unlearning" to do. (27)

    Borrows has used the Anishinabek trickster figure, Nanabush, to explore Canadian law, (28) and it is high time that the visiting went respectfully in the other direction too. Surely, the common- law's best-loved mythical figure is the 'Reasonable Person.' One of the best judicial descriptions of the 'reasonable person,' by Justice Laidlaw in Arland and Arland v Taylor, is as follows:

    [...] he is...

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