Towards justice For urban Indigenous communities in Canada

By Aaron Mills203

Project and approach

The purpose of this report is to guide the development of the urban Indigenous component of the Department of Justice Canada’s (JUS) Indigenous Justice Strategy (IJS). I have been asked to consider two issues in particular within my recommendations:

With respect to the second issue, I have been advised that the reference to “justice system” is intended to point beyond the criminal context, while of course including it.

I have also been asked not to focus on challenges and problems already documented through inquiries, commissions and scholarly research.204 Instead, my task is aspirational: I am asked to articulate a path forward, a vision for the future. Importantly, I am encouraged to proceed unencumbered by worries about federal government (including JUS) interests. I am specifically encouraged to engage with the prospect of Indigenous law revitalization—that is, bringing Indigenous law back—insofar as doing so relates to the research question. This is important because I take, as a starting point, that Indigenous systems of law and governance have never been legitimately terminated. Albeit seriously damaged, in many Indigenous communities’ Indigenous law is still functioning. With careful work and adequate support, I think this could be true of all Indigenous communities in Canada.

My approach is as follows. I begin by explaining that both of the focus issues identified above are consequences of “internal” colonialism.205 This means that while we might reform (improve upon) these two issues by tackling them directly, we can only transform (eliminate) them by ending internal colonialism. As our focus therefore shifts to internal colonialism, the question then becomes what would ending internal colonialism look like? The standard reply is that Canada should return political authority (sovereignty) to Indigenous communities, through recognition of their sovereignty. I suggest that, especially in the urban Indigenous context, the standard reply presents serious problems. Instead, Canada should return legal authority (legality) to urban Indigenous communities.

Now the question becomes: what kind of legal authority is appropriate to urban Indigenous communities? I suggest an approach which combines a measure of urban Indigenous authority over Canadian law (insofar as it touches upon urban Indigenous people) with urban Indigenous authority over the creation of a deliberately incomplete system of Indigenous law specific to urban Indigenous peoples. The core idea is that as capacity in the latter strengthens, reliance on the former weakens. However, I explain below that urban Indigenous law should never be fully developed into a complete system of law, animated by its own authority. The cost of that authority would be borne not only by Canada, but also by the Indigenous people(s) upon whose traditional territory the urban community exists.

However, even incomplete urban Indigenous legal authority will represent a sea change in how Law is imagined within Canada. Although it is not novel, one of the key insights I present is that Indigenous systems of law sourced in their own authority are oriented towards wellness, not justice. I suggest, therefore, that an IJS should orient urban Indigenous communities towards wellness and should adequately support them in pursuing it. I explain that, amongst other things, this will mean establishing a positive sense of urban Indigenous community in which each member is honoured for their contributions and provided for.

As a final introductory remark, I suspect that many readers will approach this report with the expectation of finding recommendations that support and are supported by the idea of Indigenous sovereignty (and so familiar institutions like legislatures and courts, now to be run by and for Indigenous peoples). Such an expectation is understandable, because it builds upon the familiar context of Canadian legal and political institutions. However, as a general approach this report does not recommend the expansion of familiar ideas about law and justice, and thus it does not provide any such blueprint for an IJS. Instead of Indigenous sovereignty, it aims at Indigenous legality (legal authority), an idea not nearly as well understood. At stake in the difference is one of my late grandmother’s most important teachings: when Indigenous peoples’ systems of law are grounded in their own sources of authority, they do not require sovereignty to operate.206 In the result, this report seeks to open up new and creative possibilities for how Indigenous law should be understood within a modern IJS, rather than a detailed IJS implementation strategy.

The problem of internal (or “settler”) colonialism

One cannot address either the overrepresentation of Indigenous peoples in Canada’s criminal justice system (focus issue one) or systemic discrimination against Indigenous peoples within Canada’s justice system (focus issue two) without understanding what causes these problems. The answer is not so simple. In taking up the first issue, and given the state of social and economic struggle within many urban Indigenous communities in Canada, one might be tempted to point towards the relationship between social welfare indicators and behaviours the state recognizes as criminal. In taking up the second issue, one might point towards prevailing attitudes and institutional cultures prejudiced against Indigenous peoples throughout Canada’s justice system. The difficulty is that both of these answers beg the further question, “and where did those problems come from?” I suggest that when we follow that question all the way down, we find a form of colonialism called “internal” or “settler”207 colonialism as the root cause.

The term “internal colonialism” does not refer to the fur trade era, nor does it describe a historical fact. Rather, it describes an ongoing power dynamic—a kind of relationship—between settler peoples and Indigenous peoples, in which the former exercise power over the latter. It consists of the settler peoples claiming the Indigenous peoples’ lands and jurisdictions for the purpose of settlement and settler governance: for a settler society which intends to stay.208 In claiming authority over Indigenous lands and Indigenous jurisdictions, internal colonialism disallows Indigenous law, except where the settler colonial power (here, Canada) recognizes an exception and makes an allowance. Thus, where Indigenous law survives settler authority, it does so because Canadian law has permitted it. This form of colonialism is thus called “internal” because whatever powers of law and governance Indigenous peoples retain or acquire, they hold them inside of Canadian legal and political authority.

Within this dynamic, Canadian legal and political authority is rendered ordinary and Indigenous legal and political authority is rendered exceptional, even though Indigenous peoples were here first. Canadian law attempts to resolve the tension by formalizing Indigenous exceptionalism.209 Thus, rather than living within social, economic, legal, and political systems and infrastructures authorized by Indigenous law and for the specific needs of Indigenous peoples, Indigenous peoples have Canadian systems and infrastructures applied to them in an exceptional way. Since those systems and infrastructures were not designed for the unique circumstances of Indigenous peoples, they are frequently ill-fitting and minimally (or non-) functional. The predictable consequence of long-term, ill-fitting and misapplied social, economic, legal, and political systems and infrastructures is Indigenous communities that do not have healthy, well-functioning social, economic, legal, and political systems and infrastructure, and which therefore suffer all manner of systemic harm. This includes, for instance, lower health and education outcomes, unemployment and poverty, the mass apprehension of children and police abuse, and the absence of basic municipal infrastructure, amongst many other systemic harms. Canadian Courts, including the Supreme Court of Canada, have repeatedly drawn a direct line from colonialism to systemic harms (like focus issues one and two) in Indigenous communities.210

From internal colonialism to Indigenous legal authority

I have argued so far that internal colonialism is the root cause of Indigenous over-incarceration and of anti-Indigenous racism throughout Canada’s justice system. Eliminating such problems requires that we eliminate internal colonialism. The question now becomes determining what precisely that means.

A standard (perhaps the standard) Indigenous reply draws upon the fact that what Canada has unjustly taken—Indigenous lands and jurisdictions—are the contents of Indigenous sovereignty. Indigenous sovereignty, then, is what has been taken and Indigenous sovereignty is what must be returned. This proposition is often presented using the language of sovereignty, but just as often the language of self-government, self-determination, or inherent rights has been used. Framing the central harm of internal colonialism as a matter of political authority has an intuitive appeal: Indigenous peoples feel all too keenly that we are not the ultimate authority for decision-making in our own communities. It is a fundamental indignity to have a political master one has not chosen and to whose political authority one has not consented.

While I recognize the obvious appeal of such an approach, I suggest that it is nonetheless misguided. For one thing, from the standpoint of Indigenous law, the notion of sovereignty is vexing because it assumes that political authority is top-down and coercive, and thus to be exercised over members of the political community. There is a literature built around this problem.211 But even if the problem of the nature of political authority can be resolved in a manner reconcilable to Indigenous systems of law and governance, the notion of sovereignty poses a residual problem for urban Indigenous communities. Political sovereignty is necessarily a claim against the political authority, contemplated in respect of clear territory and membership boundaries. Urban Indigenous communities possess neither of these features.212

As for membership, the identity of the Indigenous people represented within an urban Indigenous community rarely corresponds neatly to the identity of the Indigenous people(s) upon whose traditional territory the urban community exists.213 One or two Indigenous peoples may be more frequently represented within an urban Indigenous community (because they belong to the host Indigenous people), but the general composition of the community is typically diverse, consisting of individuals from distinct Indigenous peoples, often from distinct Indigenous language families. The individual members of urban Indigenous communities therefore frequently lack a shared history, culture, language, and experience of colonialism. Their sense of shared Indigenous identity is thus loose and unsettled, defined by their common experience of, and participation within, the larger municipal context as Indigenous people (regardless of how they might be specifically situated). Because the sense of shared Indigenous identity is open to interpretation, it is difficult to clearly determine who is included and excluded from membership in this context. Unlike rural Indigenous communities, which typically have clear membership rules, there is no equivalent to a membership list for urban Indigenous communities, no formal conditions of entry to or exit from belonging. Further complicating the matter, Canadian censuses continue to indicate that urban Indigenous peoples are frequently itinerant—instead of residing permanently in their urban Indigenous community, they move back and forth between urban and rural Indigenous communities.

Directly related, the political boundaries around the space urban Indigenous communities occupy are at best ambiguous, and are often non-existent. In many urban Canadian environments, particular neighbourhoods are more strongly associated with Indigenous peoples, but there are no formal boundaries dividing the urban Indigenous community’s space from other community spaces.214 Because they lack the requisite “closedness” of membership and of territory, it seems unlikely that an urban Indigenous community could mount a claim for sovereignty.

The territorial and membership “openness” of urban Indigenous communities does not present the same sort of obstacle if we say that it is Indigenous peoples’ legal authority which internal colonialism has unjustly taken, and, therefore, which must be returned. To be clear, I am not suggesting that the following proposal is ideal. It comes with many, and sometimes significant, problems of its own. Yet I remain convinced that working through what Indigenous legal authority means in the context of urban Indigenous communities provides a workable path forward worth striving for.

What, then, Is Indigenous legal authority?

Before turning to the urban Indigenous context, a preliminary question is “what do we mean by Indigenous legal authority?” We might mean different things. Most of my work regards Anishinaabe law as taught to me by my grandmother and other elders from Treaty #3 and from southern Manitoba. When I think about Anishinaabe legal authority, I have Anishinaabe legality in mind. Legality refers to “the property of being law”: that which makes law, law.215 From this standpoint, Anishinaabe legal authority means not only being the author of Anishinaabe law (i.e., being the one generating, interpreting and enforcing Anishinaabe law), but also—and this is vital—the capacity to re-imagine what “law” means from an Anishinaabe standpoint.

Anishinaabeg might give a different answer to the question “what makes law, law?” than settler Canadians. In other words, it isn’t enough to be put in the position of generating, interpreting and enforcing Anishinaabe law (so to speak, being in the “driver’s seat”). That freedom is but a first step. It might win Indigenous peoples nothing more than the freedom to be the ones running things the way that Canada does. Beyond that first step, we must be free to authorize our own law on its own conceptual terms and within its own institutional forms (i.e., as our ancestors lived it, but modified to our contemporary needs). This “legality” standard of Indigenous legal authority is what we might call a full form of legal authority.

Although my primary scholarly commitment regards the revitalization of Indigenous systems of law in the full forms of their legal authority, I do not think that Indigenous legality is the appropriate standard of Indigenous legal authority for urban Indigenous communities today. First, for reasons similar to those given above, urban Indigenous communities are not “communities” in a sufficiently robust sense that they could produce and operate a legal system animated by their own unique Indigenous legalities. Second, even if in time they were able to do so, I would be gravely concerned about injustice to the Indigenous people(s) upon whose traditional territory the urban environment exists. With few exceptions, Indigenous systems of law and governance have never been legitimately terminated; except for the exercise of internal colonial power over them, they would still be functioning (and in many communities, albeit seriously damaged, they are still functioning). Therefore, any other legal system—including an urban Indigenous one—is an interloping second-comer and cannot justly disrupt the authority of the colonized Indigenous one that was already there and that has never been legitimately displaced. I suspect that members of urban Indigenous communities share this sensibility, and thus that many urban Indigenous communities would not want to possess full legal authority.216

We might call this “the interloper worry.” Importantly, it is not triggered insofar as urban Indigenous communities aspire to a measure of legal authority that in no way impairs the underlying legal authority of their host Indigenous people(s). This more modest approach to Indigenous legal authority—what we might call partial legal authority—is also more practical given the particulars of the urban Indigenous context discussed above. The remaining questions are: first, what might a model of partial Indigenous legal authority appropriate to the urban Indigenous context look like; and second, how can it be achieved? The first question is one of vision; the second, one of practicality. I take them up together, offering practical recommendations as I unpack the vision.

A model of partial Indigenous legal authority for urban Indigenous communities

This section includes three subsections, each of which presents an aspect of partial Indigenous legal authority for urban Indigenous communities, and vitally, the kind of JUS and federal government IJS commitments necessary to support them. The first subsection considers overarching and foundational aspects of partial Indigenous legal authority upon which the next two subsections depend. The second subsection considers what I shall call the “reactive” aspect of partial Indigenous legal authority: the capacity to react to immediate harms. Given the immediate context of Canadian internal colonialism, this section necessarily centres on Canadian law. The third subsection considers the “proactive” aspect of partial Indigenous legal authority: the capacity to proactively create the conditions which diminish the intensity and the amount of harm in the community. This capacity draws dominantly from Indigenous law. The model presents a progressive movement from the former towards the latter.

Overarching and foundational commitments

The six foundational IJS recommendations which follow represent a paradigm of an Indigenous-Canada relationship which begins to unwind the internal colonial status quo. It should come as no surprise that a postcolonial relationship—a relationship that imagines Canada exercising power with Indigenous peoples, not over them—will dramatically unsettle long-established norms of federal behaviour, responsibility and entitlement that have not been reckoned with the legitimate interests of Indigenous communities (whether urban or rural), and which have long benefited from that failure. Again, I was invited to dream big.

A vast literature supports the proposition that most systems of Indigenous law in North America, when empowered by their own legal authority, were not oriented towards justice, but rather wellness.217 Justice is the idea that each subject of the law should receive its due; wellness is the idea that each subject of the law should have its needs met. As a general matter then, justice remains a purpose of Indigenous legal systems only as a function of wellness, not as an end in itself. A model of partial Indigenous legal authority appropriate to urban Indigenous communities should share this foundational understanding of Indigenous law’s primary purpose.

An initial recommendation is thus for the IJS to anticipate that the Indigenous law projects of actual urban Indigenous communities may share this orientation. JUS must therefore reconcile itself to the position that an urban Indigenous law orientation to wellness, in lieu of justice (or as the point is often put, justice as wellness), is not to be considered a matter of negotiation, but rather as an enabling condition for negotiation. Given JUS’s familiarity with and experience of Indigenous law’s orientation towards wellness,218 the recommendation that it prepare to actively support that understanding should be neither surprising nor intimidating, even in its vastness. And it is indeed vast: we are not only talking about how to understand and empower Indigenous law, but also about changing the way that certain elements of Canadian law regard urban Indigenous peoples. Second, each distinct urban Indigenous community is sure to have its own vision of wellness, and local urban Indigenous voices must be empowered to define what wellness means for the purposes of how an IJS might apply to them.

To be sure, these complexities present challenging questions (not the least of which regard the Charter219). Yet, if JUS cannot do what is necessary to allow urban Indigenous law to orient itself towards wellness, then the IJS will likely be a further instrument of internal colonialism and status quo, not a pathway to its end and a better future beyond. The IJS will stay mired in the realities of Indigenous over-incarceration and systemic anti-Indigenous racism throughout Canada’s justice system. Finally, on practical terms, it should go without saying that an Indigenous approach to law centred on wellness is ideally placed to confront the mass-scale, systemic unwellness (including over-incarceration) that too-frequently characterizes urban Indigenous communities.

Internal to this JUS commitment is an obligation for the federal government to accept responsibility for coordinating its various ministries, agencies and units to work together to allow JUS to achieve this goal. It is no answer to an urban Indigenous community to say that the federal Crown is divided across many bodies, all of which have to be accommodated and not all of which are yet supportive. An effective IJS must account for the cost of internal federal coordination by establishing a legal responsibility for the federal government to reconcile conflicting federal voices. Presumably an institution vested with the necessary authority to evaluate and compel timely compliance will need to be created.

A third related commitment is that the federal order of government shall have to commit to fully funding urban Indigenous wellness (in the specific ways that that notion is explained in the following two subsections). Amongst other things, this will include establishing core programs, services, and infrastructure funding—and maintaining their effective functioning in perpetuity.

As urban Indigenous wellness is progressively attained, presumably part of this cost will be offset by reduced costs on Canada’s social, economic and legal systems. However, such costs would be improperly understood as novel burdens unduly imposed upon taxpayers and/or on the state. Properly understood, the costs associated with these changes merely begin to account for the legal, political, economic and social benefits of internal colonialism that Canada and Canadians have already realized. They would correct a distortion, internalizing what systemic racism has allowed to be treated as an externality. Restated, the payment of such costs should be understood as a logical and necessary part of Canada’s commitment to reconciliation. And if, as the Truth and Reconciliation Commission teaches us, reconciliation is not only a goal but also a process, then there is no logical end to the government’s obligation to pay such costs, insofar as internal colonialism continues. All of this is to say that while the payment scheme must be negotiated, the federal government must openly choose to pay it; adjudicated proof that colonialism is a sufficient legal cause of systemic harms in urban Indigenous communities must not be required.

A fourth foundational commitment regards the fact that, as discussed, unlike rural Indigenous communities, urban ones are not political communities. They have no political boundaries, governments or citizens of their own. They, too, are second-comers to already existing Indigenous political communities. I have already stated that I do not think the answer to this difficulty is to make political communities of urban Indigenous communities. Rather, the federal government will have to enter into negotiations with urban Indigenous community members to creatively co-develop a system of informal democratic governance which urban Indigenous community members would accept. Whatever model of informal governance (MIG) is chosen—and the model is likely to vary from one urban Indigenous community to another—the federal government will need to be formally responsible for adequately resourcing it in perpetuity. The analysis and recommendations in the next two subsections all take that an adequately resourced and supported MIG exists.

Fifth, the development of a MIG responsible for the development of (a) urban Indigenous authority over Canadian law, and (b) urban Indigenous law oriented to wellness, will necessarily touch upon matters under provincial heads of constitutional authority.220 Elements of JUS’s IJS that require provincial support will require provincial agreement. This is a deep challenge, but it is one which must be carried by the federal government. It is not the fault of Indigenous peoples that Canada’s practice of internal colonialism is untidily organized across both federal and provincial sides of the federation; it is no answer to urban Indigenous communities for the federal government to complain of a provincial hold-out. Rather, the federal government will need to be made responsible for getting the relevant province(s) on board. While the context is different, the logic applied here is similar to that of Jordan’s Principle.

Sixth, the IJS should require that each MIG, the federal government, and the relevant provincial government(s) enter into a comprehensive long-term, and legally enforceable, urban Indigenous wellness agreement that articulates how individual and collective urban Indigenous wellness will be achieved (with a full accounting of all of Canada’s associated resource obligations) over time. Each agreement must require the development of a community plan with short-, medium-, and long-term goals and their associated measures. These agreements (and the community plans they contemplate) will be sufficiently complex that I do not think it is helpful to begin to stipulate here what they must include.

The reactive aspect of partial Indigenous legal authority for urban Indigenous communities: Adjusting Canadian law

The temporal thrust of a legal system oriented towards wellness is proactive. As a general matter, Indigenous systems of law seek to create the conditions that foster and sustain individual and collective wellness.221 The long-term gains that such an approach promises require a long-term investment. The resulting temporal delay for the system to be running efficiently cannot be allowed to paralyze urban Indigenous communities with unresolved conflict and unaddressed harm. Wellness requires that urban Indigenous communities must be empowered to react effectively to real-time challenges in the interim. Therefore, as urban Indigenous communities slowly build up elements of a system of Indigenous law, they will need to rely on Canadian law to fill the void (to some degree this may remain true in perpetuity, because the urban system of Indigenous law developed will always remain incomplete).

This is a vexing circumstance because although Canadian law possesses resources to manage conflict and to address harm, it has been one of the primary mechanisms through which systemic harms in urban Indigenous communities have been created and sustained. As a result, Canadian law must be used, but it must be reformed so as to address, rather than perpetuate, the systemic impacts of internal colonialism. This means that urban Indigenous communities require a measure of authority over Canadian law, insofar as it conditions and empowers their lives. An institutional consequence of this transfer of authority is the development of a body within the MIG vested with the responsibility and the power necessary to oversee the development of Indigenous authority over Canadian law within the urban Indigenous community.

It is not possible, within the context of this report, to identify everything such a body might consider. I shall focus on one matter: Indigenous legal “transplants.”222 One way that Canadian law can be made more amenable to the interests of Indigenous peoples is by progressively incorporating more (and more significant) elements of Indigenous law. In considering this possibility, it is essential to understand that transplants are not Indigenous law. When an element of an Indigenous system of law is severed from that system and transplanted into the Canadian legal system, it becomes Canadian law inspired and informed by Indigenous law.

Transplants need not be any particular element of an Indigenous system of law. I shall identify a few kinds of Indigenous law transplants (and one or two examples of each) with progressively greater impact upon Canadian law. The use of Indigenous law which arguably bears least upon Canadian law is the treatment of Indigenous law as factual evidence for Canadian law. In the Ontario Court of Appeal’s recent Restoule decision,223 the Court recognized the Anishinaabe law principles of pimaatiziwin and gizhewaadiziwin as evidence of the existence of Anishinaabe governance.224 In a remarkable Ontario Court of Justice decision, in R. v. Turtle,225 Justice Gibson recently considered multiple elements of Anishinaabe law as evidence of unequal treatment under section 15 of the Charter.226 Other judges, notably at the Federal Court of Canada, are increasingly engaging with Indigenous law as Canadian law: they have brought Indigenous law into Canadian law as formal legal rules227 or standards.228

Arguably, a more fulsome engagement with Indigenous law occurs when courts engage with Indigenous law remedies (the relief that courts order to address or prevent harms) or procedures. Remedy was the central aspect of Indigenous law engaged in the Nunavut Court of Appeal’s recent Ippak case.229 Procedural accommodations may permit Indigenous peoples to act or to speak in a manner more consistent with the conduct of their own respective legal systems. For this reason, the Federal Court of Canada’s Practice Guidelines For Aboriginal Law Proceedings,230 to which JUS is a contributor, suggests a unique approach to the oral testimony of certain Indigenous parties.

Another kind of transplant regards the appointment of Indigenous persons to key legal functions, such as justices of the peace, administrative decision-makers, and judges. If a sound appointment is made, it offers direct access to the standpoint, experience, and intellectual resources of Indigenous law. However, this approach also carries considerable risk. If an inappropriate appointment is made, then Canada’s justice system may acquire someone with an Indigenous subject position, but without meaningful connection to Indigenous law. A step beyond transplanting legal actors is transplanting entire legal processes and institutions. This is the approach represented by the use of restorative justice processes at sentencing, Correction Service Canada’s use of healing lodges and ceremonies, community-based peacemaker courts, and in the American context (and at Akwesasne), tribal courts. This approach combines multiple elements of Indigenous law and transplants the integrated nodes.

There are many avenues by which a MIG might seek to exercise the appropriate measure of urban Indigenous authority over the urban Indigenous community’s experience of Canadian law. My point was not to suggest that MIG’s should pursue Indigenous law transplants (which I have argued are easily rendered problematic). On the contrary, I suspect more significant gains can be realized by placing more emphasis on how Canadian law should regard urban Indigenous communities than on what Canadian law should include. My purpose has been to use the example of Indigenous law transplants to show (1) the remarkable range of choice that MIG’s might creatively consider from the standpoint of their unique circumstances, and directly related, (2) the kinds of matters for negotiation that the IJS should contemplate.

The proactive aspect of partial Indigenous legal authority for urban Indigenous communities: Developing Indigenous law

As important as the reactive aspect of partial Indigenous legal authority is for law and governance in urban Indigenous communities, from the standpoint of Indigenous law, it is supplementary. Proactively exercising legal authority to create and sustain wellness is of primary importance. In this section we shall see that although this goal does not require an urban Indigenous community to be fully possessed of legality, it still requires that urban Indigenous people understand their communities as sustained, positive projects.

For some Indigenous peoples’ systems of law, wellness may have been partly achieved through the creation and observance of legal rules. Where this is true, we might expect that while working Indigenous law and Canadian law together will take significant effort, it will not present serious conceptual or institutional challenges. However, there was—and in many communities, remains—a more prominent form of Indigenous law: what in English we typically call “teachings.” Teachings are relationship-specific principles and standards of proper conduct. Rather than externalized rules to interpret and follow, teachings are internalized understandings achieved through participating in ceremonies; listening to community histories, elders’ teachings, and legends; observing the land, and processing the significance of all of these experiences over time. Mishkeegogamang First Nation, an Anishinaabe community, writes that “after careful teaching in childhood, people took responsibility for their own moral conduct through inner control, rather than by responding to rules or laws imposed by government or leader.”231 Whereas legal rules establish specifically what one must, may, or must not do, teachings disclose more generally how, and how not, to conduct oneself within the full range of one’s relationships. The Honourable Murray Sinclair has helpfully explained:

Appropriate conduct in Aboriginal societies was assured through the teaching of proper thought and behaviour from one generation to the next. Moral, ethical and juridical principles were taught by example. Individuals within society who lived according to tribal principles were esteemed and honoured. They were treated as living role models of fitting conduct. Examples were also drawn from the lives of people no longer living and from the lives of fictitious heroes and heroines whose manners and behaviour were considered worth emulating.232

Blackfoot scholar Leroy Little Bear explains how a legal system in which teachings feature centrally, results in, “a positive rather than a negative approach to social control. If individuals are appropriately and immediately given recognition for upholding strength, honesty and kindness, then a ‘good’ order will be maintained, and the good of the group will continue to be the goal of all the members of the Society.”233 Vitally, such an approach to law requires a cradle-to-cradle commitment, entangling individual and community welfare as a permanent state of affairs:

How do Aboriginal peoples educate and inculcate the philosophy, values, and customs of their cultures? For the most part, education and socialization are achieved through praise, reward, recognition, and renewal ceremonies and by example, actual experience, and storytelling. Children are greatly valued and are considered gifts from the Creator. From the moment of birth, children are the objects of love and kindness from a large circle of relatives and friends. They are strictly trained but in a “sea” of love and kindness. As they grow, children are given praise and recognition for their achievements both by the extended family and by the group as a whole. Group recognition manifests itself in public ceremonies performed for a child, giveaways in a child’s honour, and songs created and sung in a child’s honour.234

Of critical importance, these descriptions presume a strong and unequivocally positive sense of Indigenous community. Under Indigenous law, Indigenous community is a sustained positive project. That means that it is not enough to have a grouping of racially same or similar individuals living in proximity to one another. In this respect, it is like Canadian law. However, neither is it enough to constrain community members’ fundamental shared commitment to procedures which enable and coordinate their activity such that one does not overstep the legal interests of another. It requires community members to have a much thicker commitment to one another, and in this respect, it differs from Canadian law.

Because teachings are oriented towards establishing good relationships, because they operate by transforming individuals’ character and capacity for judgment, and because the wider community is involved in offering and imparting teachings, a system of law which presents laws in the form of teachings both presumes and fosters a positive sense of community. Only in a secondary sense is law about resolving problems: its primary purpose is to create healthy and sustainable relationships (and in so doing, a general state of individual and collective wellness), and thus to prevent conflict as much as possible.235 The institutions, actors, processes and remedies of such legal systems are organized and oriented accordingly, which means that in vital respects, they often look and function quite differently than those of modern liberal democratic states like Canada.

Internal colonialism has too often disrupted the proper functioning and even the contemporary existence of teachings-based legal institutions, processes, actors and remedies. The problem impacts contemporary urban Indigenous communities in a particularly fulsome way: urban Indigenous communities never had any of these features of Indigenous law (although often individual members do). For many urban Indigenous individuals, there is just an absence where teachings—and thus integration into community and a sense of one’s own limitless value—should be. On my account then, the crisis that internal colonialism has created for many urban Indigenous communities is the almost total absence of any positive sense of community.236 In the absence of a positive sense of community, we can only expect systemic harms to dominate, for there is only periphery, not centre, from which to oppose them, and more importantly, from which to establish something better. If urban Indigenous peoples are to have any hope of achieving wellness, we shall have to be defined by much more than common subject position and service provision.

Indigenous law, teachings, and wellness

First, the IJS should recognize that Indigenous people, including urban Indigenous people, may understand that law takes the form of teachings in addition to, and often, perhaps even in lieu of, legal rules. The IJS should require Canadian governments (both federal and provincial/territorial) to accept this reality and to actively and constructively engage with it. The IJS should empower the use of teachings (in addition to, or even as opposed to, legal rules), under Indigenous law. This allowance will have far-reaching institutional, procedural and remedial consequences. Indigenous law institutions, processes and remedies often may not be immediately reconcilable to those of Canadian law, yet this challenge must not be used as a reason to fail to recognize, empower or engage with them. From the standpoint of Indigenous legal systems, Canada’s legal institutions, processes and remedies may appear just as unreasonable, unworkable, and impractical. Once more, ending internal colonialism means that Canadian law must allow and empower Indigenous systems of law to function under their own legal authority. Although in the case of urban Indigenous communities that authority will be only partial, it may still extend to law represented as teachings.

The IJS should recognize that urban Indigenous communities will not be only starting to envision individual and collective wellness and to take steps to achieve it. On the contrary, there are frequently community members and service organizations with considerable experience in promoting, protecting and developing urban Indigenous wellness. Although the federal and provincial governments are vital parties to the urban Indigenous wellness agreements, their role with respect to envisioning wellness, as the IJS should understand it, is to listen and to support, but not to lead. It will not be state actors who oversee, or even populate, the institutions and processes which render urban Indigenous wellness. Indigenous service organizations frequently complain about constraints on how their funding may be spent. While accountability, including fiscal accountability, is essential to ensuring urban Indigenous wellness, the move to specify when and how monies must be spent is an example of Canada imposing upon the wellness vision of urban Indigenous communities.

Every person (whether or not they are Indigenous and whether or not they are urban) who has not been pushed so far into unwellness that they have stopped imagining a future, wants to be a healthy, productive, growing person who realizes their individual potential and who contributes to their community. For too many urban Indigenous peoples, there are significant obstacles to even being pointed towards this basic human goal. Some of us need basic life supports, such as nutritionally adequate food, shelter, clothing, childcare, and income sufficient to cover basic needs. Some of us have physical and/or mental health needs that are unmet or inadequately met. Some of these are minor and fleeting, while others are severe and chronic. Some of us need professional supports in order to shift direction in our life, such as training, licensing, skills development, mentorship and/or education. Some of us need help correcting our life choices so that we stop hurting ourselves and others; some of us need help making amends; some of us need help believing that it could ever be any different. Some of us just need someone else to believe in us so that we can remember what it is to believe in ourselves. Some of us need to connect for the first time with what it means to be an Indigenous person; some of us, to allow ourselves to remember. Some of us need our stolen children returned. Some of us need police to pay attention to us, or to finally leave us alone. All of us need the dignity that comes with the capacity to make real choices for ourselves. All of us need to belong. All of us need to be honoured for who we are, and to remember that we have a gift the world needs.

Although it varies dramatically from one territory to another, Indigenous law—typically, but not exclusively through teachings—is designed to do all of these things. An IJS committed to a better future will empower urban Indigenous law. It will take a complex and integrated suite of supports (institutions, programs, services and relationships) to create and deliver all of this in a manner that flexibly responds to the needs of individual community members, while maintaining fiscal and ethical accountability for the extraordinary investments that will be needed for the wellness of urban Indigenous communities. However, providing urban Indigenous communities with both the reactive and proactive legal authority necessary to envision and execute a community plan that organizes and offers those supports, and to fully fund that plan even when it contemplates elements of legal authority starkly different from those of Canadian law, is exactly what an IJS that wishes to end the injustice of internal colonialism should strive for.

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Miigwej
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