A Report on the Relationship between Restorative Justice and Indigenous Legal Traditions in Canada

Indigenous Legal Traditions and Reconciliation

The Truth and Reconciliation Commission’s Calls to Action, as well as the TRC Final Report, have much to say regarding the relationship between Indigenous legal traditions and reconciliation in Canada. Indeed, the Calls to Action, but more so the Final Report, contain details discussing how Indigenous legal traditions can contribute to reconciliation, which can be categorized into two general streams.

The first is the symbolic significance of implementing Indigenous legal traditions in Canada. Considering that Canada has historically suppressed knowledge of Indigenous legal traditions (Borrows 2010; Napolean and Friedland 2014) and has denied the existence of such traditions (Napolean and Friedland 2014), implementing Indigenous legal systems in would represent a major shift towards reconciliation in the relationship between Canada and Indigenous people (Borrows 2010; TRC 2015). Indeed, it would signal a shift away from ongoing colonialism, towards a nation-to-nation relationship based on respect (Borrows 2010).

The second stream is more substantive and pragmatic, in the sense that utilizing individual Indigenous legal traditions, and approaching them as actual laws, can facilitate healing and reconciliation in a way that is meaningful and relevant to the people and local communities involved. This goes beyond the symbolic significance of what implementing Indigenous legal traditions would represent, since most Indigenous legal traditions contain values, processes, protocols, and ceremonies that actively promote healing and reconciliation by addressing and moving beyond colonialism and its ongoing aftermath (TRC 2015). For example, Haudenosaunee people practise a ceremony, rooted in their own laws and kinship practices, called the Condolence Ceremony. The Condolence Ceremony is usually performed in times of personal and/or nation-wide grief, and done with the intention of restoring balance in the community (TRC 2015a). According to the TRC Final Report,

“The Condolence ceremony allows people who have been through traumatic experiences together—those who are healthy, those who are in mourning, and those who have caused harm—to work together to address losses. Through this ceremony, apologies and restitution are embodied in expressive performances as people are called upon to tell stories and acknowledge losses related to the harms they have suffered. The ceremony occurs in a precise sequence, employing vivid imagery, and can be used in many circumstances where trust and understanding have been broken because of a party’s harmful actions” (TRC, 2015a).

The Condolence Ceremony can provide a way for Haudenosaunee people to establish a new and equal relationship with Canadians, especially in the wake of the Indian Residential School experience. Healing and reconciliation would be grounded in Haudenosaunee laws, ceremonies, and diplomatic protocols.

The Mi’kmaq people of the Maritime region, or Mi’kma’ki (Mi’kmaq territory), also have laws and ceremonies that can contribute to healing and reconciliation in the wake of the Indian Residential School experience. Like the Haudenosaunee, reconciliation to the Mi’kmaq people relies on respecting and following Mi’kmaq laws, which means Canada and church officials should engage in Mi’kmaq ceremonies, feasts, protocols, and dialogue with Mi’kmaq people, with the intention of opening up space for a new relationship to develop (TRC 2015a). With that in mind, ceremonies, feasts, apologies, protocols, dialogue, and restitution represent a common approach to reconciliation amongst other Indigenous nations in Canada (TRC 2015a). However, this does not mean that each Indigenous nation’s approach to reconciliation is the same. On the contrary, the Final Report stresses that a “one size fits all” approach is counterproductive to achieving reconciliation with Indigenous nations (TRC 2015a). Canada must approach each Indigenous nation as a distinct people, with their own unique histories and cultures, and begin the hard work that reconciliation requires in a way that prioritizes local Indigenous laws and protocols. As the Final Report points out however, Indigenous people should not be coerced to participate in reconciliation processes, but instead, should be able to decide when and how they will engage with Canada (TRC 2015a).