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Parallel Justice Systems, or a Tale of Two Spiders.

Dewhurst, Dale
June 4, 2015

Source: (2004) In Catherine Bell and David Kahane, eds, Intercultural Dispute Resolution in Aboriginal Contexts. Vancouver: University of British Columbia Press. Pp. 213-231.

Recently, attempts have been made to modify or create systems of justice to respond to Aboriginal rights and values. One such attempt is the establishment of Canada’s first Aboriginal Court, the Tsuu T’ina First Nation Court. Staunch advocates of the adversarial system of justice may complain that the First nations Court gives Aboriginal people too much power; or, they may complain that it breaches fundamental principles of justice by providing separate justice systems for Aboriginals and non-Aboriginals. However, it is my position that where the court model is weak, it is because Aboriginal people have too little control. My concern is that attempts to introduce Aboriginal justice systems into the “adversarial system” (the term used to designate the current Canadian justice system) are prone to fail where the two systems have differing levels of authority. If Aboriginal systems are considered to be alternative, preliminary, of lower authority, or unofficial, their opponents will resort to the more “final” or “official” adversarial system in controversial cases. Instead, Aboriginal justice systems must be designed as authoritative and parallel models of justice. To discover some of the principles necessary to achieve this end, I will critically examine the rationale and structure of the Tsuu T’ina First Nation Court and I will draw out three useful comparative points from the historical development of the courts of common law and equity. This critique and comparison will show how we may take further steps toward achieving truly authoritative and parallel Aboriginal justice models. But first of all, for those who want a shorter route the problem and its solution are revealed in the tale of the two spiders. (excerpt)


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