Living Legal Traditions: Mi'kmaw Justice in Nova Scotia

By McMillan, L. Jane | University of New Brunswick Law Journal, January 2016 | Go to article overview

Living Legal Traditions: Mi'kmaw Justice in Nova Scotia


McMillan, L. Jane, University of New Brunswick Law Journal


The Royal Commission on the Donald Marshall, Jr. Prosecution remains the most important public inquiry into the relations between First Nations peoples and the criminal justice system in the history of Nova Scotia. The Commission's 1989 Report called for the creation of a "Native Justice Institute" to, inter alia:

a) Channel and coordinate community needs and concerns into a Native Criminal Court;

b) Undertake research on Native customary law to determine the extent to which it should be incorporated into the criminal and civil law as it applies to Native people;

c) Train court workers and other personnel employed by the Native Criminal Court and the regular courts;

d) Consult with Government on Native justice issues;

e) Work with the Nova Scotia Barristers Society, the Public Legal Education Society and other groups concerned with the legal information needs of Native people; and

f) Monitor the existence of discriminatory treatment against Native people in the criminal justice system.

The "Mi'kmaq Justice Institute" was founded in 1996 to implement this Recommendation. It closed within three years.

The termination of the Mi'kmaq Justice Institute created a significant gap in support for Indigenous peoples encountering the Canadian criminal justice system. It critically fettered both the development of Indigenous customary law practices and their substantive incorporation into all areas of settler law. Responding to the pressing and immediate needs of the community, the "Mi'kmaw Legal Support Network" emerged from a youth-focused Aboriginal restorative justice program into a court worker service provider. Today the Mi'kmaw Legal Support Network is a stand-alone justice service that provides court worker, customary law and victims services programs. Mi'kmaw communities increasingly seek access to justice services that are relevant to their social, political and cultural rights under treaty, customary, constitutional and Charter protections. Although hobbled by severe financial constraints and only modest receptivity by the Canadian justice system to Indigenous legal principles and practices, the Mi'kmaw Legal Support Network has innovatively worked to meet the many demands of those who seek its assistance.

The Truth and Reconciliation Commission very recently implored "the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples". Further to this "Call to Action", this paper will examine the intersection of Mi'kmaw legal traditions with the Canadian justice system through the lens of the Mi'kmaq Legal Support Network and provide an analysis of its successes and challenges.

The realities of colonization and assimilation driven policies continue to resonate in the Canadian legal system perpetuating injustices within Indigenous communities and must be renounced. Canadian society has a responsibility to develop and align its justice system to reflect and support Indigenous legal traditions that offer powerfully beneficial practices for redress, reconciliation and self-determination. Decolonization requires that law be transformed from a tool of oppression and dispossession into a forum where Indigenous peoples' rights and dispute resolution practices are fully embraced. This transformation must occur at every level in the administration of justice, including legal education to facilitate the increased use of restorative justice processes and other initiatives relevant to Indigenous sovereignty.

I. DONALD MARSHALL AND MI'KMAW JUSTICE

Donald Marshall Jr.'s wrongful conviction and life sentence for a murder he did not commit in 1971 exemplified the profound systemic discrimination experienced by Indigenous peoples as they encountered the Canadian justice system. The findings of the Royal Commission on the Donald Marshall, Jr. …

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