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Raven grows new feathers : realizing contemporary Indigenous visions of justice in Canada through the culturally sensitive interpretations of legal rights

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Title: Raven grows new feathers : realizing contemporary Indigenous visions of justice in Canada through the culturally sensitive interpretations of legal rights
Author: Milward, David Leo
Degree Doctor of Philosophy - PhD
Program Law
Copyright Date: 2009
Publicly Available in cIRcle 2009-11-02
Abstract: Indigenous peoples in Canada demand self-determination over criminal justice for a number of reasons. Indigenous approaches to justice that resemble restorative justice are thought to be more effective in dealing with Indigenous criminality, to promote the healing of offenders and victims, and to promote relationship reparation in Indigenous communities. Indigenous punitive sanctions such as corporal punishment may also provide a briefer deterrent alternative that avoids the hardening conditions of prisons. Indigenous peoples have little room to pursue these visions of justice. Canadian laws and policies accords only minor accommodations of Indigenous approaches to justice. This is sustained by a political culture that often demands harsher sentences to assure deterrence and public safety. Judicial treatment of the Aboriginal rights provision of the Constitution Act, 1982, provides limited scope for Indigenous peoples to litigate or negotiate for rights to substantive criminal jurisdiction. One approach to overcoming this is to litigate for an Indigenous right of internal autonomy. It gives Indigenous peoples a better position to demand greater accommodation for their justice practices. Another approach is for Indigenous communities to explore avenues for their own economic development, so that they can their own justice systems, free of external influence, to meet their needs. If Indigenous self-determination becomes a reality, there is another issue that is imperative to address. What happens when Indigenous individuals assert their legal rights under the Canadian Charter of Rights and Freedoms against their own justice systems? This engages a tension between Indigenous justice traditions that emphasize collective well-being and individual rights. There is a method for resolving this tension. The Royal Commission on Aboriginal Peoples explored the concept of culturally sensitive interpretation of legal rights, re-interpreting legal rights under the Charter to better reflect Indigenous justice traditions while still leaving in place meaningful safeguards against the abuse of collective power. This dissertation puts culturally sensitive interpretation into action by exploring specific proposals with reference to specific rights in the Charter.
URI: http://hdl.handle.net/2429/14525

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