Truth Reconciliation and Justice Kimberly Murray Assistant Deputy

Truth, Reconciliation and Justice Kimberly Murray Assistant Deputy Attorney General Aboriginal Justice

Truth When you talk about truth, whose truth are you talking about? Elder Dave Courchene TRC Executive Summary, pg. 12

Reconciliation Truth and Reconciliation Commission: …reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.

Reconciliation IS NOT Forgive and Forget

Reconciliation IS Remember and Change

Remember

Change By hearing your story, my story can change. By hearing your story, I can change.

Two Row Wampum Travel down the river, side-by-side. Neither will attempt to steer the other’s vessel.

Two Row Wampum Friendship

Two Row Wampum Peace

Two Row Wampum Respect

Change There can be no doubt that the founders of Canada somehow lost their moral compass in their relations with the people who occupied and possessed the land…while we can not change history, we can learn from it and we can shape our common future…This effort is crucial in realizing the vision of creating a compassionate and humanitarian society. 2009 Senator Gerry St. Germaine - June 11,

Rebuild Trust has The most significant damage is to the trust that been broken between the Crown and Aboriginal Peoples. That broken trust must be repaired.

Rebuild Trust The Truth and Reconciliation Commission of Canada issued 94 “Calls to Action”. 33 expressly call for provincial action. 15 specifically target the justice sector.

Injustice System “[I] personally would like to have the opportunity to one day believe in the “justice” system. For the time being, where my people are concerned, it continues to be the “injustice” system” David Neel TRC Report Volume 5, pg 196

Justice as a Barrier To Survivors, the justice system was a barrier to their efforts to bring out the truth of their collective experience. TRC Report , Volume 5 pg. 86 Law has been and continues to be, a significant obstacle to reconciliation. TRC Report , Volume 6 pg. 48

Aboriginal Justice Division Mission Statement To support reclamation of Indigenous legal traditions and strengthen justice for Indigenous peoples within Ontario Vision Statement A transformative and unified circle of justice rooted in sovereignty, self-determination, reciprocity and reconciliation.

Two Row Wampum Travel down the river, side by side. Neither will attempt to steer the others vessel.

Reclamation of Indigenous Legal Systems “I encourage all the First Nations to go back to their theories, go back to their stories, go back to their Elders, go back to your protocols, and find the solutions because we need them today. ” Blackfoot Elder Reg Crowshoe TRC Report Volume 6, pg. 47

Reclamation of Indigenous Legal Systems “First Nations, Inuit and Métis communities across the country are making concerted efforts to recover and revitalize their laws and legal traditions. They must be supported in these efforts. ” TRC Report Volume 6 pg. 47

Reclamation of Indigenous Legal Systems “We’ll make the canoe right and …keep it in the water so it does not bump on rocks or hit the shore…[When we tip a canoe] we may lose some of our possessions…Eventually we will regain our possessions [but] they will not be the same as the old ones. ” Elder Stephen Augustine TRC Report Volume 6 Pg 52

Indigenous Legal Traditions and the Canadian Justice System There are two ways that Indigenous legal traditions can relate to the Canadian justice system: 1. Indigenous governments can be supported in exercising jurisdiction in reclaiming, revitalizing and implementing Indigenous systems of justice; and/or 2. Some aspects of Indigenous legal traditions could be incorporated into the Canadian justice system.

Mary Ellen Turpel The ideal option is to support Indigenous communities to reclaim and implement community-based dispute resolution systems based on Indigenous legal principles and systems. This will take time…

Mary Ellen Turpel IN THE MEANTIME… Adjudicators can work to incorporate aspects and processes that reflect Indigenous legal principles and systems to make the Canadian legal system more responsive to the unique needs of Indigenous people.

What can Adjudicators do? 1. Be open to a shift in perspective 2. Openly acknowledge the history of colonialism within your decisions 3. Adapt tribunal processes to be more respectful

Shift your perspective Examine your own assumptions about Indigenous people Be open to feeling uncomfortable while learning about Indigenous law and how to engage respectfully with Indigenous people Consider the way in which you, as an adjudicator, rely and build upon legal doctrines that are hostile to Indigenous interests and laws

Shift your perspective Interrogate the way that law has evolved to promote interests that disadvantage Indigenous people Understand that legal doctrine does not reflect Indigenous law as Indigenous communities and people have been actively excluded from participating in the legal system and designing legal processes Participate willingly in cultural competency training and be open to reforming that curriculum to create opportunities to openly discuss these issues

Acknowledge the history within decisions Openly acknowledge in tribunal decisions the effects of colonialism on Indigenous communities and individuals standing before you Connect the history of the person and his/her community to the rulings’ reasons Cite the TRC’s report where relevant

Adapt court processes to be more respectful 1. Create space in the hearing room to facilitate respect and genuine listening to Indigenous stories/testimony Support the creation of physical spaces that reflect Indigenous legal processes Schedule extra hearing time to enable Indigenous witnesses to provide their testimony in a narrative, story-telling style consistent with how Indigenous law is communicated

Adapt processes to be more respectful 2. Respect the Role of Elders: Where appropriate to the matter in dispute, have an Elder from the community participate in the hearing by giving contextual testimony, much like an expert witness Permit Elders to speak uninterrupted in hearings and intervene where counsel is being disrespectful of an Elder’s status

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