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South Australia: Nunga Court II – Aboriginal Sentencing Conferences

The Nunga Court of South Australia was established in 1999 to provide a culturally relevant sentencing option for Aboriginal offenders. 2005 legislation legitimizing the Nunga court required that victims be given the opportunity to participate in addition to the offender, elders, and community members. In response, the regional court in Port Lincoln is piloting an Aboriginal Sentencing Court incorporating elements of the Nunga Court model and restorative conferencing and sentencing circles from Canada. This article summarizes a paper by Dr. Andrew Cannon, Deputy Chief Magistrate and Senior Warden for South Australia, describing the new Aboriginal Sentencing Conferences. A link to the full paper is below.

Incorporating Custom Law into State Law in Melanesia1

In this article, Pat Howley describes the revival of custom law in Bougainville and its importance in building peace.

Blue, Arthur W and Blue, Meredith A. Rogers. The case for aboriginal justice and healing: the self perceived through a broken mirror

The Blues point out the disproportionately high percentage of First Nations’ people incarcerated in Canada. In response, they argue for the merits of aboriginal justice ideas and practices, especially aboriginal and not Euro-Canadian justice for aboriginal peoples. As the basis for their argument and for aboriginal justice, the authors discuss key elements of the worldview of First Nations’ peoples. This worldview emphasizes the holistic interrelatedness and interdependence of all parts of existence, such as the spiritual and the material, the animate and the “inanimate,â€? and animals and humans. Therefore, key ideas and values of living within this worldview include harmony, mutuality, relationship, and responsibility. Moreover, in this worldview, the individual human self achieves true humanness through development of an awareness of the self as “otherâ€? (as when a person looks in a mirror and sees the reflection of himself or herself), where the “mirrorâ€? or identity of that self comes from being embedded in his or her cultural tradition. The interaction of Euro-Canadian cultures with aboriginal cultures has led to severe and damaging identity crises for aboriginal people as groups and as individuals. With all of this in mind, the authors argue that aboriginal justice, based on a different worldview, is characterized more by restoration of harmony, mutuality, relationship, and responsibility, thereby promoting conflict resolution and healing. In contrast, Euro-Canadian justice is characterized more by punishment and retribution. The Blues then describe traditional practices that express and effect these realities and values: the sweat lodge; the vision quest; the pipe ceremony; and the sentencing circle (which is specifically related to aboriginal justice).

Brettin, C and Weeks, P and Shull, L. and Platts, S. and Paisano, F. and McCarthy, P and Laffin, M and Guilfoyle, M. Nez Perce Peacemaker Project: An Inter-Cultural Approach to Dispute Resolution

This paper describes the design and implementation of the Nez Perce Peacemaker Project, which enables the tribal court to refer cases to mediation. The goal of the Peacemaker Project is to establish a culturally appropriate way for tribal members and institutions to resolve disputes. Tribal members co-mediate disputes with the law students and have successfully mediated two disputes. Topic include an overview of the program, implementation stages, collaboration with tribal members to ensure that the project reflects Nez Perce cultural values, and a discussion of how resources from a number of organizations were leveraged to maintain the program.

Maxwell, Gabrielle. Restorative Justice: A Maori Perspective

This paper is a response to Belgrave (1995) and describes the historical and current Maori justice system. An option to strengthen the restorative process embedded in the Maori community is proposed. Issues regarding the adapting of past practices to principles of restorative justice are discussed from the Maori perspective. Recommendations for the essential elements of a new system based on restorative processes are listed. Includes descriptive overviews of indigenous justice models from North America and Australia. Specific warnings against mistakes of other alternative dispute resolution models are appended.

Laprairie, Carol. Aboriginal Criminal Justice in Canada

A special issue of the journal is devoted to Aboriginal crime and justice, primarily in Canada which use Braithwaite's (1989) "Crime, Shame and Reintegration" as an explanatory framework. Articles include customary law among aboriginal groups in British Columbia; crime control in 3 Ontario Nishnawbe-Aski Nation communities; dominant and dominated cultures of native villages in Alaska; the role of police on 25 reserves in Quebec; homicide trends among Aboriginals and other Canadians; Aboriginal female suicides in custody; the dimensions of "owning" crime and disorder in the east James Bay Cree communities of Quebec; the juvenile court system in 22 Manitoba communities; factors influencing native policing arrangements; critiques the theory of invention of tradition, with the People of the Longhouse of the Kahnawake Mohawk Nation; the issue of community participation in socio-legal control within the Inuit of the Northwest Territories; and the characteristics of Aboriginal recidivist. Lastly, Scott Clark attempts to tie together the underlying themes of this special issue.

Laprairie, Carol. Altering Course: New Directions in Criminal Justice: Sentencing Circles and Family Group Conferences

This paper explores two new approaches in criminal justice which have important implications for indigenous and aboriginal communities, sentencing circles in Canada and family group conferences in Australia. Processes and principles involved in sentencing circles and family group conferences are described, and the effectiveness of each restorative justice approach is assessed and compared. The author concludes that sentencing circles and family group conferences will have to prove themselves before declaring success in redressing concerns with the mainstream criminal justice system upon which restorative justice is based.

Bargen, J. Critical View of Conferencing

A critique of two new criminal justice initiatives, sentencing circles in Canada and family group conferences in Australia, is presented. Sentencing circles in Canada involve a process whereby community members recommend the sentence in cases involving other members of the same community. Family group conferences in Australia allow persons directly affected by crime to actively participate in dealing with the consequences of crime. Both collective and individual accountability for offending behavior. Both initiatives are evaluated in terms of their implications for aboriginal and indigenous communities.

Hazlehurst, K and Dunn, A. T. Aboriginal Criminal Justice

Aboriginals are overrepresented at every level of the Australian justice system. Compared to non-Aboriginals, they were more frequently convicted of person offenses and less frequently convicted of property offenses. Researchers and administrators have examined factors contributing to high Aboriginal incarceration rates. State and territorial Governments have been urged to address the situation by upgrading legal and rehabilitative services, examine areas in which justice may fail to be impartial, and develop community justice options such as dispute resolution and community service orders. In addition, efforts are needed to enhance the quality of Aboriginal life, re-empower Aboriginals, and aboriginalize criminal justice administrations.

Hazlehurst, K. Resolving Conflict: Dispute Settlement Mechanisms for Aboriginal Communities and Neighborhoods?

Modern community justice mechanisms or dispute settlement programs can be grafted upon customary or existing Australian Aboriginal methods of handling disputes. The Aboriginal dispute settlement process can have a complementary relationship with the criminal justice system, and it might be welcome as a diversionary alternative for minor offenses and disturbances of the peace. The author considers possible lines of mediation, referral, and processing; a judicial-informal system with an Aboriginal community council and courts; and a community-based autonomous system of community dispute resolution centers.

Hazlehurst, K. Aboriginal Criminal Justice: A Bibliographical Guide

This bibliography embodies the author's attempt to survey the literature on Aboriginals and the criminal justice system. It incorporates books, articles, official reports, unpublished theses and papers from government departments and agencies, academic institutions and individual researchers. The bibliography has been arranged chronologically under twenty-one subject headings.

Hazlehurst, K. Popular Justice and Community Regeneration: Pathways of Indigenous Reform

This book includes articles involving crime and conflict resolution possibilities for indigenous communities. Hazlehurst discusses the need for First Nation people to reconstruct their communities and rediscover ancient social mechanisms for resolving disputes. H. Hylton discusses Canada's social policy toward their aboriginal people and the need for fundamental reforms. A. Angelo describes the Tokelau Endeavor to reclaim tribal ownership of criminal law. T. Olsen, G. Maxwell, and A. Morris discuss the Maori and youth justice in New Zealand. M. O'Donnell presents issues and challenges of mediation within aboriginal communities. A. Story describes the Native Counseling Services of Alberta and its attempts to strengthen community. E. RedBird considers how native women are honored as the backbone of native sovereignty. M. Hoyle considers how community healing is a fitting strategy for aboriginal justice systems. C.T. Griffiths and C. Belleau consider ways of addressing crime and victimization in Canada to revitalize communities within their own culture and traditions. M. Hodgson discusses issues concerning addictions, treatment and prevention in native communities. J. Atkinson and C. Ober describe the healing process of 'Fire and Water": We Al-Li.

Choudree, R.B.G. Traditions of Conflict Resolution in South Africa

In the domain of law, and elsewhere, 'alternative' dispute resolution can be used in more than one way. It may signify a recognition that there are other methods than litigation, and that these may sometimes be more appropriate. But it may also serve as a label for methods which are frowned upon as popular but amateurish. This article is written from the perspective that the deep roots and valid reasons for traditional conflict resolution methods and customs should be taken seriously. They form part of time-proven social systems, in which the objective is usually more than just settling a case. Such methods, whether they include more adjudication or more mediation, are especially oriented towards reconciliation and the maintenance or even improvement of social relationships. Representative examples from a few South African societies are discussed, as well as the current situation of Western and customary law, modern courts and tribal courts, legal professionals and traditional leaders. Possibilities for the future are pointed out, in an increasingly urbanised South Africa, but a South Africa with a new Constitution.

Dutil, Jean-L.. "Restorative Practices Seen by the Court"

Quebec, Canada, Dutil discusses a number of principles and practices in Aboriginal communities in Quebec – principles and practices blending Aboriginal patterns and Euro-Canadian criminal justice. Using examples from actual incidents of crime, he refers in particular to sentencing circles and their similarity to traditional Aboriginal responses to wrongdoing (those traditional responses being based on Aboriginal values and philosophy).

Nindorera, Louis-Marie. Keepers of the Peace: Reviving the Tradition of Bashingantahe in Burundi

Ninodorera explores the traditional method of conflict resolution for ethnic groups in Burundi. This council of elders was held to be impartial, truth loving, and of high moral standards. They were in charge of dispute resolution, family reconciliation, the maintenance of justice, and other issues. Although these councils lost power after colonization and state control, they are seen as a means to solving the major problems leading to ethnic and political conflicts. Reprinted in,Voices From Africa, No. 8. Conflict, Peace, and Reconstruction published by the UN Non-Governmental Liaison Service.

Irani, George E. Islamic Mediation Techniques for Midde East Conflicts

Irani describes the problems of using western forms of conflict resolution in the Middle East. He describes the rituals of suhl and musalaha. In doing so, he stresses the need for cultural understanding in peacemaking processes.

Melton, Ada Pecos. Indigenous justice systems and tribal society

Melton states that dual justice systems exist in many contemporary tribal communities. Melton describes one of these systems as an American paradigm of justice. The other he calls an indigenous paradigm. In this paper he compares and contrasts the significant characteristics of each of these paradigms of justice: the American paradigm is adversarial, legalistic, and punitive; the indigenous paradigm is holistic, inclusive, restorative, and reparative. Attention is also given to key structures of indigenous systems: family forums; community forums; traditional courts; modern tribal courts. Melton concludes with comments on preserving indigenous systems in the face of competition between the American paradigm and the indigenous paradigm in tribal communities.

Walker, Ruth. In Canada, solving youth crime tribal way

In this article Walker points to the potential of restorative justice ideas and processes in the Canadian justice system. Those ideas and processes may give greater satisfaction to victims, and they may offer governments an effective alternative to issues and problems in the justice system, especially the costs of incarceration. Walker uses examples of cases from western Canada (where restorative justice resonates with Indian tribal justice) to demonstrate restorative justice in action, including conferencing, restitution, and involvement of victims.

New Zealand Ministry of Justice.. "He hinatore ke te ao Maori- A glimpse into the Maori world: Maori perspectives on justice. "

Maori people are disproportionately involved in the criminal justice system in New Zealand. At the same time, Maori terms are increasingly used in New Zealand statutes. In view of all of this, the New Zealand Ministry of Justice set out to examine traditional Maori perspectives on justice. The Ministry’s primary purpose in this book is not to recommend criminal justice reform. It is to achieve an understanding of Maori customary law (“tikanga") by exploring Maori cultural values, beliefs, principles, and practices, especially as these concern dispute resolution. The book consists of three parts: the first part deals with traditional Maori concepts and customary law; the second part presents eight case studies of dispute resolution from the 1930s and 1940s in parts of New Zealand where Maori custom still was strong; and the third part surveys a collection of Maori behaviors, philosophies, emotions, and cultural influences. Appendices to the book provide a chronology of the project, terms of reference, and the methodology. A glossary of Maori terms is also included.

Nolan, Christine. Alternative Dispute Resolution in Aboriginal and Islander Communities: The Community Justice Programs Experience.

Nolan expresses the ideas of conflict between people being co-opted by the state. She then relates how this is doubly true for Aboriginal peoples whose methods of dispute resolution were subsumed by colonizing powers. In an attempt to bring alternative dispute resolution to communities, the community justice program used mediation. The program provided and trained mediators for communities. The program tried to be culturally sensitive enough to allow the aboriginal communities to develop their own systems.