The imminent recognition of an inherent Aboriginal right to selfgovernment
signals the beginning of the reversal of a colonization process
which threatened the cultural survival of a people. The Report of the Aboriginal
Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an
autonomous Aboriginal criminal justice system as a significant component of
this cultural revitalization. This Aboriginal criminal justice system would differ
markedly from the conventional system in giving priority to collective rights over
conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal
values and advocates a “tailor-made” Aboriginal charter that would incorporate
“only those fundamental freedoms and civil liberties that do not violate the
beliefs and paramount collective rights of the Aboriginal peoples.”
The conventional justice system’s paramount concern for individual
rights is premised on the potential of punishment. The Inquiry’s starkly
contrasting paramount emphasis on collective rights is premised on an
Aboriginal view of justice which this thesis refers to as the “harmony ethos”:
The underlying philosophy in Aboriginal societies in
dealing with crime was the resolution of disputes, the
healing of wounds and the restoration of social
harmony… Atonement and restoration of harmony
were the goals - not punishment.
The tension between individual and collective rights apparent in the
proposal of the Inquiry is the specific focus of this thesis. The colonization
process may justify a separate Aboriginal justice system. However, the harmony
ethos premise, while appropriate to the mediation-reconciliation communitarian
model of justice advocated by the Inquiry, blinds the Inquiry to the additional,
and crucially different, adjudicative-rights imperatives of the contemporary
Aboriginal society.
Actually existing Indianism reveals conflict-generating fault lines in the
harmony premise which challenge the sufficiency of the Inquiry’s group-based justice paradigm and indicate a need and desire for an adjudication justice
component and concomitant Charter values.
This adjudication hiatus in the Inquiry position is a reflection of a similar
void in historical Aboriginal justice which challenges the asserted rationale of
cultural survival for the paramountcy of collective rights in the contemporary
Aboriginal justice system. This historical adjudication hiatus does not preclude
a separate Aboriginal justice system, but favours the inclusion of Charter values
to strengthen an adjudication cultural foundation which is frail relative to its
reconciliation-mediation strength.
This thesis is a modest attempt to address the interface between two
systems; one mature, but in need of change, the other, fledging and in need of
assistance. The Charter provides a ready and flexible framework to join the
Aboriginal community both to the larger society and to the unlanded Aboriginal
diaspora by principled standards of justice. These fundamental indicia of
fairness, recognized by all civilized self-governing units, constitute no significant
threat to the cultural survival of the Aboriginal mediation justice heritage, while
buttressing its inherent adjudication frailty. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/3337 |
| Date | 05 1900 |
| Creators | Johnston, William Wayne |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 5665822 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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