One, is that there is an increasing tendency to resolve important human rights and other public and private interest disputes behind closed doors without any kind of public scrutiny of the processes or results (Sharia or other)
Two, is that we are systematically privatizing a fundamental tool of democratic governance
OVERALL, this debate provides an opportunity to take a closer look at what we are doing to family law in Ontario and adjudication as a form of governance in other parts of the country
Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada
The view of many Indigenous people is that the utilization of the Government of Canada’s court system is fraught with danger (due to the way it has historically been used to destroy them of their culture and race)
Indigenous communities and leaders are forced to turn to Canada’s courts because there is no other legal mechanism
When they do it is with the knowledge that the courts still are reluctant to recognize their own traditional means of dispute resolution and law (refer to plenary session Aboriginal Legal Services talking circle)
Reconciliation will be difficult to achieve until Indigenous peoples’ own traditions for uncovering truth and enhancing reconciliation are embraced as an essential part of the ongoing process of truth determination, dispute resolution, and reconciliation.
No dialogue about reconciliation can be undertaken without mutual respect as shown through protocols and ceremony
To improve Aboriginal peoples’ access to justice, changes must occur on at least two fronts: nationally, and within each Aboriginal community. (a framework is provided by the UN Declaration on the Rights of Indigenous Peoples, article 40)
On a local level in Canada steps are being taken (See plenary session; Tsui T’ina First Nations Peacemaker Justice System)
Trevor C.W. Farrow, “Residential Schools Litigation and the Legal Profession”
As of December 2016, there were approx. 15,000 ongoing claims involving approx. 80,000 people
Claims were advanced as individual litigation claims, class actions and through ADR processes
The litigation and settlement process to compensate Indigenous peoples did not reflect well on the justice system as a whole
The adversarial, tort-based system of redress is disconnected from a restorative approach to healing and community building desired by Indigenous peoples, often lacks cultural sensitivity – alienating those who use it, re-victimises claimants through evidentiary requirements of testimony and proof, and the cost of pursuing claims often outweighs any resulting benefit
