Indigenous Peoples must establish our own legal system in Canada

Like many law students, I began this journey believing I could make a difference by advocating for those still waiting to be heard. Nevertheless, even before law school, it was made clear to me that Canadian law is concrete and will likely never change.

Canadian law is concrete and will likely never change

Indigenous peoples have been disproportionately harmed by the Canadian legal system due to violent settler colonialism and systemic racism, writes Andre Bear. (Liam Richards)

This Opinion piece is by Andre Bear, a recent law student graduate, former youth representative of the Federation of Sovereign Indigenous Nations and co-chair of the Assembly of First Nations National Youth Council.

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I recently graduated from law school and officially stepped into the Canadian legal system, where I will begin articling with a firm in Toronto. 

Like many law students, I began this journey believing I could make a difference by advocating for those still waiting to be heard. Nevertheless, even before law school, it was made clear to me that Canadian law is concrete and change is incredibly slow, no matter the lawyer you become or the positions you might hold.

This became more evident when Jody Wilson-Raybould became Canada's first Indigenous Attorney General. She was met with endless challenges as an Indigenous woman and was eventually removed from the Liberal caucus before she could make a real difference in Canadian law.

Indigenous Peoples have been disproportionately harmed by the Canadian legal system since our country's inception. Violent settler colonialism and systemic racism are well documented in nearly every area of law.

To be clear, law school does not teach you how to make a difference in Canadian law. 

It indoctrinates you to perpetuate the religious principles of punishment and deterrence. Punishing the people who break the law will deter them from committing more crimes — this remains the foundational doctrine of Canada's legal system.

Restorative justice

Every now and then, a few professors would talk about this alternative system called "restorative justice," and how it had been proven to change the lives of offenders, victims and entire communities.

They would provide examples like Norway, which has the lowest rate of recidivism (people who re-offend) in the world, and a prison system that actually benefits the economy because prisoners are provided with higher education and become trained in skills and trades while they are incarcerated.

Don't get me wrong, the current Attorney General of Canada, David Lametti, has made several attempts to promote restorative justice through funding programs and putting an end to mandatory minimum sentencing with Bill C-5.

The most historical move to improve the Canadian legal system thus far has been passing Bill C-15, an action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples, ensuring all of Canada's laws are consistent with Indigenous rights to self-government and self-determination. 

This was a massive step toward the recognition of Indigenous rights, but even more so the recognition of Indigenous law.

Indigenous law

As an upcoming lawyer, I see this as one of the most important moments in our history. 

If we can use this opportunity to establish an Indigenous legal system in Canada, it might put an end to the over-incarceration of our people and vast systemic racism.

For decades there have been endless reports and studies about how to address these issues. They've all been ignored. 

Sometimes I believe that if we did create an Indigenous legal system, Canada wouldn't have anybody left to incarcerate.

Now that Indigenous rights to self-government and self-determination will be recognized, Indigenous courts that enforce Indigenous laws that are foundational to restorative justice, healing, and redemption must be established. 

Perhaps this is what Canada needs to inspire the evolution of a system that is destructive and unsustainable. Because it is not only Indigenous people suffering in the legal system. 

This includes all the judges, lawyers, court staff and corrections officers who are overworked, overburdened, and often traumatized by a defective system that only perpetuates harm rather than preventing it.

Healing and redemption

Canadian offenders are still waiting for their chance at healing and redemption.

Hopefully, when Indigenous courts are established, this will inspire transformative change toward restorative justice, healing and redemption in the Canadian legal system.

Now more than ever, this society could use our ancestral legal knowledge of how to live sustainably with the land and harmoniously with each other.

However, this knowledge no longer requires recognition through words, acknowledgements or symbolism. Indigenous ancestral knowledge now requires the force of law.

I'll never forget the words of the late Harold Johnson, a legendary Indigenous lawyer who was once asked about establishing an Indigenous legal system.

"It can't be any worse than what we have now."

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André Bear

Freelance contributor

André Bear, B.Ed, J.D. (He/Him) is a Nêhîyaw (Plains-Cree) educator and advocate of inherent and treaty rights. He’s a Juris Doctor graduate from the University of Saskatchewan and is now pursuing his master of laws. At 21 years of age, André was appointed as an advisor to the Minister of Crown-Indigenous Relations Canada for the implementation of TRC Call to Action 66.