Response to the Alberta Courts Indigenous Justice Strategy: We Still Have a Long Way to Go

By: Nicholas Anderson, Student at the Faculty of Law, University of Alberta

The beginnings of this article stem from the second floor of the Edmonton Law Courts, where there has been a semi-recent implementation of an Indigenous Court in Room 266. Here, Indigenous offenders can have their cases heard, while feeling a sense of Indigenous culture that they might not experience in a formal courtroom. The procedure in proceedings remains nearly identical to that of a formal court, but it is a start. The structure of the courtroom is unique, where litigants, offenders, and the judge sit amongst each other around a circular table. They discuss the situation at hand, issues are raised, and the Indigenous offenders are given the chance to connect with an elder. Having everyone on level ground creates a vision of equity; this vision is the central theme promoted by this article.

The Indigenous Court is one initiative supported by the Alberta Court of Justice’s movement known as the Indigenous Justice Strategy. The Indigenous Justice Strategy (“IJS”) is a Government of Alberta initiative set forth to promote a culturally relevant, restorative, and holistic system of Justice. A key component of the IJS is the emphasis on promoting access to justice (‘A2J’) for Indigenous people. Not only is A2J promoted, but just as important is creating positive experiences for Indigenous people within the system once accessed. The Alberta Court of Justice (‘ACJ’) outlines a plethora of responses to this growing issue, most of which correlate with the Government of Canada’s overarching move towards reconciliation in all areas of society.

The ACJ, in response five, declares its intention to address the structural components of legal systems that may impede an individual’s ability to thrive judicially. One can decipher from this response that the government acknowledges its processes may appear foreign or daunting to many Indigenous individuals, groups, or even nations. The procedural aspects of litigation are comprehensive and are important to ensure litigants do not risk being vexatious or find themselves contributing to an abuse of process. Although this concept of comprehensive litigation is essential, there is an argument that it does not have to be a one-size-fits-all system. The need for less foreign means of procedure is apparent in a system of law that disadvantages Indigenous people disproportionately. This has led to an array of continuing complications, some as simple as troubles navigating the justice system.

In 2018, then-Attorney General Jody Wilson-Raybould released a publication outlining how the Government of Canada would direct itself away from the status quo in its relationship with Indigenous peoples. In regards to civil litigation, the Attorney General presented twenty litigation guidelines for further promotion of a more positive Indigenous-legal relationship. She particularly emphasizes the ‘Principles’ more publicly known as the “Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples”. These principles promote a greater understanding by all who engage with civil litigation, especially those who are client departments or even Cabinet members. To make a long story short, the publication is meant to enhance the understanding of those who assist and advise Indigenous individuals and to do so within the lens of reconciliation. In theory, this is an outstanding attempt at mending a rocky relationship. However, it does not fully address the sheer complexities of Indigenous engagement within the Justice system.

Reflecting on the implementation of the EIC, one can assume there is a light at the end of the tunnel. Civil procedure, by nature, is embedded in all judicial centres, but has this always been the case? Before contact, Indigenous nations had their own ‘procedures’ or ways of accomplishing justice. These did not involve formal motions or applications, plaintiffs or defendants, or even notions of universality. So then, how can we expect Indigenous people to have the tools to succeed in litigation if they are, for lack of better terms, foreigners to this system of justice? This is not to suggest that Indigenous people should be exempt from judicial accountability. Still, there must be consideration of an easier and more digestible manner to engage with the sphere of law.

The EIC is a tremendous start, but there is a long way to go. In civil procedure, there are rules and regulations that all must adhere to. The process by which an individual follows these procedures is precisely the issue for many Indigenous people. Although these individuals can consult with professionals to familiarize themselves with the system, this is not a catch-all remedy. The proposition here is that civil procedure be developed in a way that engages with Indigenous cultural practices, i.e. through Indigenous Courts or other means. The Truth and Reconciliation Commission’s Call to Action #50 asks for the funding and establishment of Indigenous law institutes that would develop Indigenous laws and address any access to justice issues. This way, if enforced, Indigenous people who engage with the justice system would be able to do so in a less foreign, more welcoming environment. It may even allow for the development of new procedural laws that incorporate historic Indigenous legal practices that do not exist in the current system. The outcome of this would be greater comfort amongst Indigenous individuals when put in situations where they must engage with the legal system. It will also push towards reducing the amount of adversity that these people face when confronted with legal issues whether that be civil procedure or in other aspects.

The process of litigation should not be a daunting one. The system itself is not universally understood by all, especially in the Indigenous context. It is hard to formulate a resolution to this issue directly as it encompasses a vast amount of systemic and historical issues that require careful consideration and focus. It is possible, however, that the historic practices of Indigenous legal traditions be intertwined into the justice system as we know it today. What this looks like is for the government to decide, but it must be done with Indigenous consultation. It is even more intriguing to suggest that Indigenous people, hopefully, are given autonomy and discretionary powers to determine legal procedures and ways of administering justice for Indigenous people specifically. I truly do believe that one size does not fit all, and I think it is time we realize that.

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.

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