Navigating through Narratives of Despair Making Space for the Cree Reasonable Person in the Canadian Justice System

By Friedland, Hadley | University of New Brunswick Law Journal, January 2016 | Go to article overview

Navigating through Narratives of Despair Making Space for the Cree Reasonable Person in the Canadian Justice System


Friedland, Hadley, University of New Brunswick Law Journal


   I. Introduction    II. The Reasonable Cree Person   III. A Logical Starting Point    IV. The Cree Legal Tradition as a Reasoning Process     V. Narratives about Violence against Indigenous Women and Children      A. The Media Narrative      B. State Law's Narratives      C. The Trauma Narrative    VI. Spaces for Indigenous Laws in the Canadian Justice System      A. The Supreme Court's Gladue Principles and Directives      B. Current Access to Justice and Community Justice Initiatives           for Aboriginal People      C. Challenges and Critiques of Community Justice and Healing           Programs      D. Incommensurate resources and responsibility      E. Lack of Accountable and Transparent Decision-Making Processes      F. Romanticization and Essentialization of Tradition and Culture   VII. Safety First?  VIII. The Reasonable Cree Person's Place in the Current Justice System.    IX. Restarting the Conversation: Recovering Indigenous Legal       Traditions     X. Conclusion 

We [settlers and descendants] came up as Chapter 15 of the story. A little too early perhaps. (1)

I. INTRODUCTION

In the Cree language, many words assume or require a response. For example, when greeting someone, you say "Tansi" This does not translate into "hello," but rather closer to "How are you?" The response is "Manando" (I am well). The flow and assumptions of conversation embedded in the Cree language reminds us speech always occurs in relation to others. When you speak, it matters who is listening, what they hear and how they choose to respond or not respond. Indifference and disengagement are the most effective forms of silencing. If no one is listening, you can speak all you want, and still be voiceless.

Indigenous laws exist. After centuries of being absent in mainstream Canadian legal and political thought and practice, there are increasing calls for and interest in recovering and revitalizing Indigenous laws, and using them in more formal and explicit ways. (2) While there are ongoing challenges there are also cogent methods Indigenous legal scholars can use to ascertain and articulate Indigenous laws from an internal point of view. Legal scholars can engage with Indigenous legal traditions, using structured methods to do so respectfully and robustly. We can adapt and apply basic skills learned in law school to approach, analyze, and organize Indigenous legal principles in accessible and transparent frameworks, deepen our understanding of background or meta-principles, and develop resources that concretely support Indigenous communities to apply their own legal principles in more formal and explicit ways today. (3) For the past several years I have worked deeply with substantive Indigenous laws from a legal academic standpoint, in partnership with Indigenous organizations and communities across Canada. (4) The results of this and other research demonstrate that, while there is lingering damage from colonialism and decidedly uneven ground, Indigenous legal thought and practice clearly persists. (5) With hard work, the rich normative resources from Indigenous legal traditions can be accessed, understood, and applied today. (6)

However, this article is not about Indigenous laws. Rather, it is about a haunting question: Does any of this matter? Is there space, in the day-to-day reality, and in the imagination of contemporary Canada, for Indigenous laws to be revitalized, practiced, and used, within recognized and resourced justice systems and legal institutes, as the Truth and Reconciliation Commission (TRC) has recently called for in their final report on the Indian residential schools in Canada? (7) This will require space for Indigenous legal thinking to take root in a public and explicit way, not just for isolated elements, disconnected practices, (8) or vague superficial panindigenous "values." (9)

In other work, I have looked closely at substantive Indigenous laws, primarily focusing on Cree laws. …

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