Community Justice and Self Government
"This is what self-government is about: Not so much doing things yourself as deciding how things can best be done." - Stephen Cornell, Udall Center for Studies in Public Policy and Co-Director of Harvard Project on American Indian Economic Development
Aboriginal self-government in Canada is about communities shaping their own futures by exercising their inherent right to create their own laws and other policies. But self-government is not only about local control. If it were just that, then simply mimicking existing western modes of governance and policy-making might be good enough. These western modes have their place, but they rest on values and techniques that are often in conflict with values and practices of First Nations. Importantly, self-government is an opportunity to express the unique values and aspirations of the nation itself – to build “Aboriginality” into law-making and governance and to have shared meaning for the community to which these laws apply.
Nowhere is this distinction more important than in the delivery of justice. Western justice is adversarial, prescriptive, strictly categorical and heavily relies on an elite legal literati – a band of experts who interpret and understand the law for us (despite the strange assumption that everyone is expected to know the law). The realm of community justice is therefore a high priority area for self-government implementation.
All three levels of government – Aboriginal, Territorial and Federal - are jointly responsible for implementing self-government. This is part of a broader process of implementing Land Claims and related agreements – in the North and elsewhere – and must be seen as an important public policy issue for Canada. As communities prepare for implementation, the Foundation has identified a niche where it can support particular enhancements and experimental approaches that help make the transition to self-government more successful. Such approaches must either be shared with other communities or have broader potential application.
Getting to a Good Place in a Good Way: Carcross/Tagish First Nation
Carcross/Tagish First Nation (CTFN) is located in SE Yukon, its traditional territory stretching from Whitehorse in the north down toward Skagway, Alaska. Their descendants are both Tagish and Tlingit. They have recently ratified their Final (land claim) and Self Government Agreements, becoming the 11th of 14 Nations to have done so in the Territory. CTFN is well known for its strong emphasis on the clan system of government and its innovative approach to community justice, profiled in the 1997 National Film Board documentary “Circles”.
The Carcross/Tagish First Nation has worked hard for over a generation to establish its self-governing structures. Now with Final and Self-Government Agreements signed and being implemented, the First Nation began to create its own legislation. Early on in the legislative development process it was recognized that many other self-governing first nations had replicated western forms of governing to create their laws and governance structures. C/TFN believed that a new way of governing could be established, one that merged traditional systems with western systems. Such a hybrid model would rebuild families, communities and culture by rejuvenating pride and self-reliance.
The first piece of legislation developed to fit this model was the Carcross/ Tagish Family Act. Still in the final stages of the legislation development process, the Family Act was identified as an area of utmost importance by the citizens of CTFN when work on the law began over four years ago. Prior to proclaiming the legislation and implementing it in the community CTFN wanted to ensure that it was with certainty the best vehicle to develop community capacity to raise children.
The project had four major activities associated with it:
- Small Group Community Information Sessions. For the Family Act to be most effective the community must have a good understanding of the legislation and how it works. CTFN has used its performance group to act out a play to demonstrate visually the steps in the legislation. The group has already made one performance but more are planned in the near future.
- Community Training. Since the beginning of this project, a Family Council was set up and has received both formal training and on the ground experience. The Family Council is based on the traditional Clan system to ensure fairness and operates by consensus. The Family Council has also undergone three training sessions to hone their skills. Workshops were held on case management, the legal system and how the Family Act works.
- Staff Orientation and Debrief. In the project proposal two activities
were planned under this heading. First, a "test run" of the Act, using
a fictitious case and second a live run of the Act, using an actual
case. On October 12, 2007 the Family Council, with the assistance
of the CTFN dancers, performed a mock run of the case in front of
CTFN staff, territorial government officials, RCMP and judicial representatives.
By all accounts the performance was a moving success. Many of the
YTG officials who had been unable to visualize aspects of the legislation
explained that the performance was an epiphany.
Early after its establishment, the Family Council was given the opportunity to mediate an actual case. As mentioned earlier, the details and outcomes of the cases are confidential but all participants preferred the community process of the Family Council to the Court system. Since this project has begun, six cases have been resolved in a restorative consensus process by the Family Council. - Explanatory Materials. At this point in the project, Book Two - The Family Act has been formatted in a way that highlights traditional CTFN values and culture. A CTFN citizen was contracted to do the design work which features pictures, inset traditional stories and explanatory "Our Belief" quotes. The format of the legislation is fundamentally different from standard western law and proves to be more accessible to the majority of citizens. While a few draft copies of the formatted Act exist, CTFN is waiting for final approval of the Act before mass printing and distribution of the formatted Book.
This project provides a foundation of cultural relevance and community buy-in. It is a unique and experimental approach, as it turns law-making on its head in the following ways:
- Founded on values, expressed through stories and role modeling. Uses storytelling to express and teach values and principles that lie beneath all laws. It starts from a base of personal, family and community responsibility rather than of state interventions: The project team finds motivation in Ghandi’s dictum “we must become the change we want to see”.
- Uses an iterative, inclusive process to gather input from
the community and feedback successive stages to them. The feedback
loop involves focus groups, information 'walls', regular meetings
with the Executive Council (i.e. Chief and Council), the Family Council,
Elders Committee and the General Council (3 representatives from each
of the six clans, meeting 3 times during the year). Teaching materials
are being developed and field tested in local schools parallel to
this process.
- Explains the purpose of laws instead of focusing on prescriptive remedies. The CTFN process is turning this on its head. Most of our laws, such as the criminal code, basically say ‘x is bad’ and ‘if you do x, this will happen’. No rationale or underlying set of principles is given. It is simply so.
- Breaks down ‘stovepipes’ between areas of lawmaking. Laws should flow from values, not from categories in boxes. For example, the values that underscore family law also underscore how we treat the land. These inter-connections are to be made explicit in the law books.
For more information about the CTFN Book of Laws process, please contact:
Beverley Sembsmoen
Legislation Development Manager
Carcross/Tagish First Nation
Box 130
Carcross, Yukon Y0B 1B0
867-821-8217
danitae(at)yahoo.com