Dispute Resolution

Canada

In Canada, when band members have complaints against their bands, or Aboriginal people have complaints in relation to criminal, civil or human rights, they must use the provincial or federal court system, depending on the type of complaint. Recourse may also be had in provincial or federal human rights tribunals as well. Other specialized tribunals include government and union-specific forums.

Currently, the federal, provincial, municipal and other government-type organizations occupy First Nations jurisidictional space in relation to law and justice. Canada has already recognized that Aboriginal Nations have an inherent right to self-government which is protected by section 35 of the Constitution Act, 1982. Yet, Aboriginal Nations have not yet asserted their jurisdiction in law and justice.

The following reports provide information about the current state of Aboriginal courts in Canada:

http://www.scowinstitute.ca/library/documents/Aboriginal_Courts_Fact_Sheet.pdf

http://findarticles.com/p/articles/mi_m0OJX/is_2_33/ai_n31167141/?tag=content;col1

Information about the three Gladue (Aboriginal Persons) Courts in Toronto:

http://www.aboriginallegal.ca/gladue.php

Information about the T’suu Tina Peacemaker Court:

http://www.restorativejustice.org/editions/2004/August/peacemaking

http://justice.alberta.ca/news/News%20Archive%20%202000/TheTsuuTinacourtandpeacemakerinitiativeopens.aspx

Information about the Northern Cree Circuit Court:

http://www.justice.gov.sk.ca/WTFSC.pdf

Information about the new First Nations Court in BC:

https://legalaid.bc.ca/Downloads/First%20Nations%20Court%20Expanded%20Duty%20Counsel%20Pamphlet.pdf

As you can see, most of these initiatives deal with criminal offences and sentencing and they operate within the provincial criminal justice system. There are other forums for specific issues like the Specific Claims Tribunal for example:

http://www.sct-trp.ca/hom/index_e.html

But for the most part, there are few First Nation-specific forums for dispute resolution. The repeal of section 67 of the Canadian Human Rights Act means that in June 2011, bands could be facing significant numbers of human rights complaints. With federal initiatives to make all bands have custom election codes, membership codes and matrimonial property on reserve by-laws, bands will face increasing levels of responsibility and potential liability for this jurisidiction.

First Nations and their regionally-based political organizations should consider alternative dispute resolution mechanisms to stem the amount of complaints which are handled outside First Nation jurisdiction by non-Aboriginal adjudicators. These alternatives could be communal/regional ombudspersons, tribunals, courts, and/or mediation-type initiatives.

Funding and capacity will continue to be significant issues impacting First Nations’ abilities to undertake these kinds of initiatives, which is why regional-based initiatives might be more beneficial for some issues. The point is that if First Nations don’t occupy their jurisdiction in these areas, they can be sure that someone else will. Regardless of the challenges we face, our choice always comes down to us occupying that jurisidictional space, or Canada and the provinces.

The Senate recently released a report calling for First Nations to determine their own election codes and appeals processes:

http://www.parl.gc.ca/40/3/parlbus/commbus/senate/com-e/abor-e/rep-e/rep03may10-e.pdf

Tribal Courts and Justice in the United States

In the United States, some of the recognized tribes (similar to bands here in Canada) have their own tribal court systems. They have several national organizations dedicated to Native American justice and dispute resolution issues:

Tribal Court Clearing House

http://www.tribal-institute.org/

Tribal Law and Policy Institute

http://www.tribal-institute.org/lists/tlpi.htm

California Indian Legal Services

http://www.calindian.org/

National Tribal Justice Resource Centre

http://web.archive.org/web/20010515202310/http://www.tribalresourcecenter.org/

Native American Rights Fund

http://www.narf.org/

United States Department of Justice – Office of Tribal Justice

http://www.justice.gov/otj/

President Obama’s Memorandum on Tribal Consultation

http://edocket.access.gpo.gov/2009/pdf/E9-27142.pdf