Detail from "Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights" by David Milward (UBC Press)
Should the application of the Charter to Aboriginal justice be a matter of consultation with Aboriginal communities instead of a matter of unilateral imposition by the federal government?
—David Milward, author
As an assistant professor of law at the University of Manitoba and also a member of the Beardy's and Okemasis First Nation, Dr. David Milward spends a lot of time thinking about Aboriginal rights.
He's about to launch Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights. The book looks at the tension between Aboriginal approaches to justice and the Canadian Charter of Rights and Freedoms.
SCENE asked Milward to describe the five most important aspects of this ongoing issue:
1. There is the legitimate concern that Aboriginal political leaders could set up miniature tyrannies in their own communities. Is the Charter a legitimate avenue to prevent that? There are indeed significant factions in Aboriginal communities who feel that some form of individual rights is necessary as a check against abuse of governing powers in Aboriginal communities.
The Human Rights Commission noted that many Aboriginal persons that they consulted felt that there was room for compromise, that human rights could be available as address against Aboriginal governments, but interpreted in ways that were sensitive to Aboriginal traditions.
The book purports to engage in a similar exercise with respect to Charter rights enforceable against Aboriginal criminal justice systems.
2. A culturally sensitive interpretation of Charter rights can expand the room for independent Aboriginal justice systems, which can be a more constructive approach to dealing with the problem of Aboriginal over-incarceration.
Aboriginal justice, which shares parallels with restorative justice, is often presented as a more constructive alternative to dealing with Aboriginal crime than mass incarceration, which does not deter, does not reform inmates, and actually makes matters worse as they expose Aboriginal persons to criminal lifestyles and gangland cultures.
There is the concern that the Charter may erect barriers to an expansion of Aboriginal justice by obliging Aboriginal communities to model their justice systems too closely to conventional common law systems.