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Restorative Justice and Aboriginal Traditions

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Barsh, Russell Lawrence. Evaluating the Quality of Justice

Barsh, a professor at a Canadian university, notes different meanings for the concept "justice," depending on one's cultural context. For example, non-Aboriginal students tended to define justice as equality before the law. Aboriginal students tended to speak of harmony or related ideas. Barsh observes that there have been few empirical studies hazarding a measurement of the extent to which modern Western legal systems apply rules equally. There are even greater challenges to meet before attempting to measure "justice" in the Aboriginal sense. He then discusses possible indicators or measures for evaluating justice in the Aboriginal sense.

Elgersma, Sandra. To Restore: Bring Back to Health/Cure, or Reinstate; Bring Back to Dignity or Right

In this essay the writer examines restorative justice and the issues of its commonality with and applicability to Aboriginal cultures and practices. She notes that restorative justice has been receiving much attention from the criminal justice system and community groups. In Aboriginal communities, restorative justice is seen by some as the revival of ancient approaches. In mainstream society, restorative justice is praised as an alternative to a punitive system. Programs, academic research, evaluations, and guidelines exist in these two separate communities regarding restorative justice. Yet there is little in the literature addressing how restorative justice can contribute to conflict resolution between natives and non-natives. Apparent similarities between mainstream restorative justice and traditional Aboriginal justice suggest that restorative justice could be a good tool for dealing with Aboriginal and non-Aboriginal conflict.

Guest, James J.R. Aboriginal Legal Theory and Restorative Justice

In this first of two articles, the author contends that Aboriginal peoples are attempting to displace the legal system from their communities and replace it with culturally relevant systems of justice. Aboriginal perspectives on what constitutes justice are as varied and distinctive as the various Aboriginal nations throughout the world. There is, however, more overlap than differences as to a sense of what the basis for truth and justice is. The definition of justice is not the sole domain of any single nation, Aboriginal or non-Aboriginal. In Canada today there are three justice system models in operation: (1) the main criminal justice system that uses raw coercive force as its power base; (2) a criminal justice system that is attempting to augment itself with restorative justice processes and remake its image after years of locking up Aboriginal peoples; and (3) Aboriginal justice systems within communities that use respect and teaching as the basis of knowledge for living together.. This article concentrates on the use of restorative justice principles within the criminal justice system and the differences in legal theory that make the implementation of these processes difficult.

Guest, James J.R. Aboriginal Legal Theory and Restorative Justice: Part Two

In this second of two articles, the author more sharply raises issues he sees in attempting to augment Western criminal justice systems with restorative justice practices. He perceives a real danger that reforms in the area of restorative justice will be a simple repackaging and relabeling of the existing criminal justice system. He believes these attempts may be used to deflect criticisms levied against the criminal justice system by the many reports and commissions, and that attempts at reform will come to be embodied within statistical data used to "prove" that restorative justice does not work. Hence, he maintains that the most appropriate place for restorative justice processes remains within separate Aboriginal justice systems existing within Aboriginal communities.

Gulati, Shruti Gola. Healing the Circle: Exploring the Conjuncture of Peacemaking Criminology and Native Justice Initiatives

Peacemaking criminology is a non-violent movement against oppression, social injustice and violence as found within criminology, criminal justice and Society in general. Richard Quinney proposes that crime and the criminal justice process are characterized by suffering to victims, offenders and society and that crime and justice problems may be eliminated or reduced by healing the suffering which makes them a possibility. A strategy of compassion and service is therefore advocated to affect suffering and thus crime. Peacemaking criminologists recognize the dialectical relationship between the individual and society, each shaping and being shaped by the other. It is therefore important that individuals achieve a measure of peace within themselves in order to move society in the direction of peace. To this end, peacemaking criminologists advocate spiritual practice, respect for the sacred and love as tools with which one may develop the discrimination to recognize injustice and the desire and ability to end suffering. This thesis discusses the peacemaking potential of Native justice initiatives within the context of Canadian criminal justice. Like peacemaking which rose as a revitalization of peace and non-violence within criminology and its concerns, Native justice initiatives can be viewed as a revitalization movement which has risen in response to the injustice of the criminal process for Native people. By offering alternatives to criminal justice or healing approaches within the structure of the conventional criminal process, Native justice initiatives seek to provide healing and restoration and a meaningful delivery of justice to Native people in conflict with the law. The peacemaking potential of such alternatives lies in the observation that the current euro-based structure of criminal justice is foreign to the traditional spiritual and social understanding of Native people. Author's abstract.

Henderson, James Sa'ke'j Youngblood. Exploring Justice as Healing

Youngblood maintains that, in Eurocentric thought, there are many theories about justice and punishment. The biblical approach of equivalence (lex taltionis) and nineteenth century British theories of intolerable wrongs, deterrence and retribution (vergeltung) establish the dominant theories of punishment in Canadian society. In March 1994, the federal/provincial Justice ministers reached a consensus on the problems of Aboriginal Peoples in the Canadian criminal justice system. They agreed that the Canadian Criminal justice system had failed and is failing the Aboriginal people. They agreed that a new holistic approach to criminal justice, based on Aboriginal values, practices and traditions, is essential in Aboriginal justice reform. In addition, they agreed that the Aboriginal idea of justice as healing be reflected in the general justice system. This statement is a good beginning for a renewed Canadian criminal justice system.

Lee, Gloria. Defining Traditional Healing

Gloria Lee discusses the philosophy behind the First Nations' understandings of illness and the healing practices that result. She applies these perspectives and practices, rooted in First Nations' religious beliefs and understanding of natural law, to justice. She claims that Euro-Canadian justice strives for impartiality and focuses on punishment for wrongdoing. In contrast, she claims that First Nations' justice is more holistic. This approach to justice, beginning with the harm caused, aims to restore peace to the community and to reconcile the offender with the individual or family harmed.

Macfarlane, Angus H. The Hikairo Rationale: Restorying the Individual

Comprising seven domains for intervention, the Hikairo Rationale is so named because of the way peaceful resolution was reached following intertribal encounters on Mokoia Island in 1823. According to Stafford (1967), the Ngati-Rangiwewehi Chief, Hikairo, spoke and acted with such mana and influence that the illustrious Ngapuhi chief, Hongi Hika, declared that calmness and powerfulness were not incompatible notions. On this occasion, Hikairo's assertive dialogue, fundamental assurances and simple sincerity brought about a change of attitude and behaviour. The Hikairo approach is appropriate for working with both Maori and non-Maori students and teachers, even though its guiding values and metaphors come from within a Maori worldview. The traditional Maori value of "aroha" (love) has a very real place in the model. Aroha does not depict a "soft" approach. In the context of discipline, aroha connotes cooperation, understanding, reciprocity and warmth. The Hikairo programme has these qualities in abundance and is simultaneously assertive. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Tauri, Juan Marcellus. "Family Group Conferencing: The Myth of Indigenous Empowerment in New Zealand."

The author argues two points. Firstly, that the family group conferencing forum and its related legislation (The 1989 Children, Young Persons and Their Families Act) signifies the indigenisation of New Zealand's criminal justice system rather than the empowerment of Maori. Secondly, rather than signifying the ability of our justice system to culturally sensitise itself, family group conferencing in fact underlines the willingness of the State to disempower Maori by employing their justice processes while denying them a significant measure of jurisdictional autonomy.